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 kinds of custody are there?
There are two kinds of custody decided in a divorce: Legal Custody and Physical Custody.
Legal Custody is 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.). One thing to note, obviously some couples are getting divorced because they cannot come to a joint decision. 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 before hand 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 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.
Who decides what’s in best interest of the child?
How do they decide this?
Does the child have to move school districts?
Judges tend to favor children to stay in the same school districts. The goal of the custody arrangements are to help the child cope with the divorce the best way possible. Switching school districts tends to be seen as an unnecessary stressor to a child. Any unnecessary stress will be seen as not in the best interest of the child. However, if you are looking to gain custody but it would involve the child moving school districts not all hope is lost. An attorney can prove the new school is better(academically, athletically, etc.) judges have made decisions in favor of moving school districts.
Which parent has evidence of the ability to parent well?
Ideally the judge wants to grant joint legal and physical custody because they believe a child needs the love and support of both parents. However when deciding between the two parents, the judge looks at evidence of parenting ability. What makes someone a good parent? The parent needs to prove they’re dependable. Picks the child up from school. Involves themselves in their extracurricular activities. The parent has the mental capacity to raise a child potentially by themselves.
Does the parent have a criminal history?
Recent criminal history can hurt your chances of getting custody if the judge feels the criminal acts could result in physical or emotional harm to your child. Mostly violent and drug related charges are seen harshly in terms of winning custody. Other crimes tend not to weigh as heavily in custody cases. Crimes that are not recent can be seen as a positive behavioral change which can help your case. The main point to remember with a parent with criminal history in order to get custody, the parent needs to show a behavioral change in the best interest of the child. Whether it is an anger management class, seeking a counselor/therapist, or any other self help class, this can help get a custody challenged later on if the judges decision is not in your favor.
4. How is your relationship with your child?
This question may have the most impact on your custody decision. A judge will look at a lot of factors to make a conclusion about how the relationship is between you two. A major factor is if your child has serious health issues. Judge’s tend to side with the parent who is more familiar with the health care needs of the child. This can be shown by accompanying the child on doctors visits, providing required documents to school nurses, etc. A child without any health issues is a little more complicated to prove. This is done by a case by case basis, but attendance at your child’s events are seen as positive relational signs.
Who does your child want to go with?
This is necessary to include on the list but I would say this factor is not as influential on the decision making process. Judges don’t show any tendencies one way or the other because sometimes the child picks a parent who the judge doesn’t believe would be in the best interest of the child to give sole physical custody. Unless the child is aged 14 or older, does the decision start to become more of an influential factor. However, the judge can still overrule the child’s decision.
Does gender play a role on who the court gives custody too?
No. Each parent has an equal likelihood of custody.
What’s a parenting plan and do I need to do this?
A parenting plan is required by the state of Georgia in a custody agreement. This plan can include:
Where a child spends holidays, birthdays, vacations, school breaks
How parents will allocate decision making authority
What visitation rights are
The parenting plan is a crucial document to make sure everything is spelled out and documented to minimize future issues with custody. We recommend seeking an attorney if you need help in a child custody case. Fill out the contact info on our contact page and we can set up a time to go through our parenting plan worksheet.