Determining Child Custody in Georgia Divorces
Child Custody Laws in Georgia
This article introduces factors used in a Georgia divorce to determine custody rights.
Divorce is not easy. If you have kids it makes it that much harder. Who gets custody? How does visitation work? What’s a parenting plan? What is in the best interest of the child? These questions get thrown around a lot. This post will address these questions and let you know the top 5 factors in determining child custody when a couple cannot make a decision.
What Are the Two Types of Custody?
There are two types of custody decided in a divorce: Legal Custody and Physical Custody.
Legal Custody is the ability to make decisions on behalf of your child. For example, if you have joint legal custody of your child, you and your partner have to decide together on a decision. This doesn’t include small decisions. If a child is with his mother for the weekend, the mom does not have to ask the father if the child can get dessert. The child can get dessert. The joint decision process takes effect on what the court says are “major life decisions” (health, education, religion, extracurricular activities, etc.).
In some divorce cases the divorcing couples cannot come to an agreement on the specifics of child custody. This is why it is important to realize on major decisions there has to be one parent with the decision-making authority. This means one parent has the right to make the decision when the two parents cannot come to an agreement. Make sure it is agreed upon beforehand which parent has the authority on certain decisions, otherwise, the custodial parent may have the final decision-making authority on all major issues.
Physical Custody is where the child will live. Sole physical custody is where the child lives with one parent a majority of the time. This does not mean the custodial parent can restrict visitation requirements set for in the final divorce decree. Visitation rights are set out in the divorce documents filed with the court.
There can also be joint physical custody. This means the child is shared equally between the two parents. The details will be spelled out in the parenting plan required by Georgia law to be included in the divorce filing.
A court does not have to grant joint physical custody because they grant joint legal custody, the ultimate determination will be in the best interest of the child.
The divorce court judge has the authority to make the final decision regarding what is in the best interest of the child
Factors in Determining Custody Rights
In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
- a)The love, affection, bonding, and emotional ties existing between each parent and the child;
- b)The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
- c)The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
- d)Each parent’s knowledge and familiarity of the child and the child’s needs;
- e)The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
- f)The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
- g)The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- h)The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
- i)The mental and physical health of each parent, except to the extent as provided in Code Section 30-4-5 and paragraph (3) of subsection (a) of Code Section 19-9-3 and such factors as provided in Code Section 15-11-26;
- j)Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
- k)Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
- l)The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
- m)Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
- n)The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
- o)Any recommendation by a court appointed custody evaluator or guardian ad litem;
- p)Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
- q) Any evidence of substance abuse by either parent.
- 4. In addition to other factors that a judge may consider in a proceeding in which the custody of a child or visitation or parenting time by a parent is at issue and in which the judge has made a finding of family violence:
- a) The judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
- b) The judge shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
- c)If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of custody determination; and
- d) The judge shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.
- 5. In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.
- 6.In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child’s desires shall not be controlling. The judge shall further have broad discretion as to how the child’s desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.
- 7.The judge is authorized to order a psychological custody evaluation of the family or an independent medical evaluation. In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith.
- 8.If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child’s education, health, extracurricular activities, religion, and any other important matter shall be decided. Such order shall be filed within 30 days of the final hearing in the custody case, unless extended by order of the judge with the agreement of the parties.
b) In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child. A military parent’s absences caused by the performance of his or her deployments, or the potential for future deployments, shall not be the sole factor considered in supporting a claim of any change in material conditions or circumstances of either party or the child; provided, however, that the court may consider evidence of the effect of a deployment in assessing a claim of any change in material conditions or circumstances of either party or the child.
- c) In the event of any conflict between this Code section and any provision of Article 3 of this chapter, Article 3 shall apply.
- d) It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.
- e) Upon the filing of an action for a change of child custody, the judge may in his or her discretion change the terms of custody on a temporary basis pending final judgment on such issue. Any such award of temporary custody shall not constitute an adjudication of the rights of the parties.
- 1. In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.
- 2. In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent’s visitation rights or parenting time.
- 3. Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.
- g) Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney’s fees made pursuant to this subsection.
- h) In addition to filing requirements contained in Code Section 19-6-15, upon the conclusion of any proceeding under this article, the domestic relations final disposition form as prescribed by the Judicial Council of Georgia shall be filed.
- Notwithstanding other provisions of this article, whenever a military parent is deployed, the following shall apply:
1. A court shall not enter a final order modifying parental rights and responsibilities under an existing parenting plan earlier than 90 days after the deployment ends, unless such modification is agreed to by the deployed parent; 2. Upon a petition to establish or modify an existing parenting plan being filed by a deploying parent or nondeploying parent, the court shall enter a temporary modification order for the parenting plan to ensure contact with the child during the period of deployment when:
- a) A military parent receives formal notice from military leadership that he or she will deploy in the near future, and such parent has primary physical custody, joint physical custody, or sole physical custody of a child, or otherwise has parenting time with a child under an existing parenting plan; and
- b) The deployment will have a material effect upon a deploying parent’s ability to exercise parental rights and responsibilities toward his or her child either in the existing relationship with the other parent or under an existing parenting plan;
- 3. Petitions for temporary modification of an existing parenting plan because of a deployment shall be heard by the court as expeditiously as possible and shall be a priority on the court’s calendar;
- a) All temporary modification orders for parenting plans shall include a reasonable and specific transition schedule to facilitate a return to the predeployment parenting plan over the shortest reasonable time period after the deployment ends, based upon the child’s best interest.
- b) Unless the court determines that it would not be in the child’s best interest, a temporary modification order for a parenting plan shall set a date certain for the anticipated end of the deployment and the start of the transition period back to the predeployment parenting plan. If a deployment is extended, the temporary modification order for a parenting plan shall remain in effect, and the transition schedule shall take effect at the end of the extension of the deployment. Failure of the nondeploying parent to notify the court in accordance with this paragraph shall not prejudice the deploying parent’s right to return to the predeployment parenting plan once the temporary modification order for a parenting plan expires as provided in subparagraph (C) of this paragraph.
- c) A temporary modification order for a parenting plan shall expire upon the completion of the transition period and the predeployment parenting plan shall establish the rights and responsibilities between parents for the child;
- 5. Upon a petition to modify an existing parenting plan being filed by a deploying parent and upon a finding that it serves the best interest of the child, the court may delegate for the duration of the deployment any portion of such deploying parent’s parenting time with the child to anyone in his or her extended family, including but not limited to an immediate family member, a person with whom the deploying parent cohabits, or another person having a close and substantial relationship to the child. Such delegated parenting time shall not create any separate rights to such person once the period of deployment has ended;
- 6. If the court finds it to be in the child’s best interest, a temporary modification order for a parenting plan issued under this subsection may require any of the following:
- a) The nondeploying parent make the child reasonably available to the deploying parent to exercise his or her parenting time immediately before and after the deploying parent departs for deployment and whenever the deploying parent returns to or from leave or furlough from his or her deployment;
- b) The nondeploying parent facilitate opportunities for the deployed parent to have regular and continuing contact with his or her child by telephone, e-mail exchanges, virtual video parenting time through the Internet, or any other similar means;
- c) The nondeploying parent not interfere with the delivery of correspondence or packages between the deployed parent and child of such parent; and
- d) The deploying parent provide timely information regarding his or her leave and departure schedule to the nondeploying parent;
- 7. Because actual leave from a deployment and departure dates for a deployment are subject to change with little notice due to military necessity, such changes shall not be used by the nondeploying parent to prevent contact between the deployed parent and his or her child;
- 8. A court order temporarily modifying an existing parenting plan or other order governing parent-child rights and responsibilities shall specify when a deployment is the basis for such order and it shall be entered by the court only as a temporary modification order or interlocutory order;
- 9. A relocation by a nondeploying parent during a period of a deployed parent’s absence and occurring during the period of a temporary modification order for a parenting plan shall not act to terminate the exclusive and continuing jurisdiction of the court for purposes of later determining custody or parenting time under this chapter;
- 10. A court order temporarily modifying an existing parenting plan or other order shall require the nondeploying parent to provide the court and the deploying parent with not less than 30 days’ advance written notice of any intended change of residence address, telephone numbers, or e-mail address;
- 11. Upon a deployed parent’s final return from deployment, either parent may file a petition to modify the temporary modification order for a parenting plan on the grounds that compliance with such order will result in immediate danger or substantial harm to the child, and may further request that the court issue an ex parte order. The deployed parent may file such a petition prior to his or her return. Such petition shall be accompanied by an affidavit in support of the requested order. Upon a finding of immediate danger or substantial harm to the child based on the facts set forth in the affidavit, the court may issue an ex parte order modifying the temporary parenting plan or other parent-child contact in order to prevent immediate danger or substantial harm to the child. If the court issues an ex parte order, the court shall set the matter for hearing within ten days from the issuance of the ex parte order;
- 12. Nothing in this subsection shall preclude either party from filing a petition for permanent modification of an existing parenting plan under subsection (b) of this Code section; provided, however, that the court shall not conduct a final hearing on such petition until at least 90 days after the final return of the deploying parent. There shall exist a presumption favoring the predeployment parenting plan or custody order as one that still serves the best interest of the child, and the party seeking to permanently modify such plan or order shall have the burden to prove that it no longer serves the best interest of the child;
- 13. When the deployment of a military parent has a material effect upon his or her ability to appear in person at a scheduled hearing, then upon request by the deploying parent and provided reasonable advance notice is given to other interested parties, the court may allow a deployed parent to present testimony and other evidence by electronic means for any matter considered by the court under this subsection. For purposes of this paragraph, the term “electronic means” shall include, but not be limited to, communications by telephone, video teleconference, Internet connection, or electronically stored affidavits or documents sent from the deployment location or elsewhere;
- a) When deployment of a military parent appears imminent and there is no existing parenting plan or other order setting forth the parent’s rights and responsibilities, then upon a petition filed by either parent the court shall:
i. Expedite a hearing to establish a temporary parenting plan;
ii. Require that the deploying parent shall have continued access to the child, provided that such contact is in the child’s best interest;
iii. Ensure the disclosure of financial information pertaining to both parties;
iv. Determine the child support responsibilities under Code Section 19-6-15 of both parents during the deployment; and
v. Determine the child’s best interest and consider delegating to any third parties with close contacts to the child any reasonable parenting time during the deployment. In deciding such request the court shall consider the reasonable requests of the deployed parent.
- b) Any pleading filed to establish a parenting plan or child support order under this paragraph shall be identified at the time of filing by stating in the text of the pleading the specific facts related to the deployment and by referencing this paragraph and subsection of this Code section;
- 15. When an impending deployment precludes court expedited adjudication before deployment, the court may agree to allow the parties to arbitrate any issues as allowed under Code Section 19-9-1.1, or order the parties to mediation under any court established alternative dispute resolution program. For purposes of arbitration or mediation, each party shall be under a duty to provide to the other party information relevant to any parenting plan or support issues pertaining to the children or the parties;
- 16. Each military parent shall be under a continuing duty to provide written notice to the nondeploying parent within 14 days of the military parent’s receipt of oral or written orders requiring deployment or any other absences due to military service that will impact the military parent’s ability to exercise his or her parenting time with a child. If deployment orders do not allow for 14 days’ advance notice, then the military parent shall provide written notice to the other parent immediately upon receiving such notice; and
- 17. A military parent shall ensure that any military family care plan that he or she has filed with his or her commander is consistent with any existing court orders for his or her child. In all instances any court order will be the first course of action for the care of a child during the absence of a military parent, and the military family care plan will be the alternative plan if the nondeploying parent either refuses to provide care for the child or acknowledges an inability to provide reasonable care for the child. A military parent shall not be considered in contempt of any court order or parenting plan when he or she in good faith implements his or her military family care plan based upon the refusal or claimed inability of a nondeploying parent to provide reasonable care for a child during a deployment.
The Parenting Plan
A Parenting Plan is required by the state of Georgia in a custody agreement. Any decisions regarding custody, visitation, and how children are to be raised should be included in the Parenting Plan.
The purpose of the Plan is to establish a basic platform for the new shared parenting situation. Another definition can be found on the DivorceNet website which reads, “A parenting plan outlines the child’s needs and how the child’s time should be divided between the parents. It allocates decision-making authority between parents and explains the parameters of each parent’s access to the child including legal and physical custody.”
Contemplating a Divorce?
Are contemplating a divorce in Georgia which involves children? You should contact a family divorce lawyer to discuss your situation and get the answers you need.