When parents divorce or separate, their children become the central focus of upcoming legal proceedings.
Custody issues affect tens of thousands of families across the State of Georgia, changing the ways that divorced and separated parents continue to remain an important part of their children’s lives. And they are complicated: custody issues involve a web of legal issues related to family law, divorce, child support laws, visitation rights, and more.
To help you understand the basics of child custody laws in Georgia, our team of family law experts created this guide as an overview of the laws and regulations that may affect your child custody case. Below, our team compiled 20 of the most common questions related to child custody laws in Georgia.
It is important to remember that every custody case is different. Every family deals with unique facts and issues that require careful analysis by an attorney. To learn more about how these laws might affect your case, contact the team at Fennell, Briasco & Associates™ for a FREE legal consultation.
Frequently Asked Questions (FAQs): Georgia Child Custody Laws
What are the steps in a child custody case?
From the moment a case is filed to the time it is resolved, child custody cases go through a number of important steps and processes. A quick overview of child custody procedure involves the following steps:
Establishing Jurisdiction: Jurisdiction refers to the court’s power to call the parties into court and, more importantly, the court’s power to issue a binding decision against those parties. Jurisdictional rules are complex, especially when it comes to children and families that live in different states. Always speak with an attorney about how these jurisdictional rules might affect your case (e.g., determining the county or state in which to file your custody action).
Filing: Child custody petitions are usually filed in the context of (i) divorce, (ii) separation, (iii) legitimation, or (iv) a modification of an existing custody order. In other words, when you file for divorce or legitimation, you will usually provide additional information about the child custody arrangement you are seeking. Under Georgia law, you must submit a “parenting plan” with your proposal for child custody. If both parents agree on the proposed parenting plan, then additional trials and hearing may not be required.
Notice & Response: In all cases, the other party (i.e., the other parent or guardian) must be notified of the filing of the child custody petition. This is called service of process, and can be accomplished by a sheriff or process server. Once the other party has received notice, he or she will have an opportunity to respond to the filing and submit their own parenting plan.
Temporary Hearings: Within a few months after filing, you may be notified of the first non-emergency hearing, usually referred to as a Temporary Hearing. In this hearing, the parties (accompanied by counsel) will go before the judge to determine preliminary issues in the case and to set up temporary circumstances that govern the case, such as temporary parenting time, temporary child support, or other provisions. During the Temporary Hearing, the judge may appoint a guardian ad litem to assist throughout the case or order the parties to attend mediation by a date certain.
Mediation: Today, the Court requires parties to attend mediation. Mediation has become an effective way to reduce the cost and increase the efficiency of child custody disputes. In mediation, both parties, their respective counsels, and a mediator will meet in an effort to resolve differences and seek agreement on key points in the child custody case. If the parties cannot agree on issues even after mediation, the case may proceed to subsequent steps.
Pre-trial Appearance: Prior to the resolution of the case, parties may be called into court for pre-trial appearances or for hearings on particular Motions filed during the case. During these appearances, the court seeks to resolve issues like contempt issues, outstanding discovery issues, or to ensure the case is moving along on track with the Court’s scheduling requirements.
Status Conferences (Fulton County only): Fulton County cases undergo a unique scheduling process involving the use of Status Conferences to keep the case moving. Throughout the case, parties (or their attorneys) are asked to meet with the court to provide a status update on the child custody case. In these status conferences, parties may meet with the judge, a judicial officer, or a staff attorney from the court. Status conferences are often scheduled every 30-60 days, though county scheduling rules may vary. During status conferences, parties exchange information and provide the court with detailed information about the case.
Discovery: Discovery refers to the process of collecting evidence, testimony, and other information related to the child custody case. During the discovery phase, parties may request production of documents, emails, text messages, photographs, videos, school records, medical records, financial records, and other information that may assist the court in determining child custody. Upon request, you may also be required to sit for a deposition, where you will have to answer questions under oath.
Trial: If there is still no resolution in the case, the case will proceed to trial—a formal setting in which a judge will preside over the parties as they present evidence and testimony in support of child custody. The judge may also call on witnesses to provide testimony. Trials can last anywhere from a few hours to several days or even weeks.
Final Custody Order: A child custody case concludes when the judge executes the final order. The final order describes the full extent of the judge’s ruling on child custody and describes which parent is awarded legal custody and/or physical custody, how the parents will structure visitation, and the final parenting plan that the parents must follow.
Enforcement: Child custody is an ongoing issue with long-term effects. After the conclusion of the child custody case, parents are expected to abide by the terms of the judge’s final order. If violated, parties may seek a remedy in court. For example, if a parent is granted regular visitation rights but is later denied, the parent should consult an attorney to enforce the existing court order.
How is child custody determined?
In all child custody cases, the primary legal consideration is “what is for the best interest of the child and what will best promote the child’s welfare and happiness.” Under Georgia law, there are 17 factors that the court takes into consideration when assessing custody arrangements. No single factor is determinative in establishing custody rights. These factors, with examples, are listed below. The full text of the law can be found at O.C.G.A. § 19-9-3.
Parent-Child Bond: “The love, affection, bonding, and emotional ties existing between each parent and the child”
Example: Parent shares a deep personal connection with Child and has been Child’s primary caregiver since birth.
Siblings: “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”
Example: Parent is seeking custody of Child. Parent has two other children: Stepsibling 1 and Stepsibling 2. Child does not get along with either Stepchild.
Parental Capacity: “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”
Example: Parent accepts a demanding job offer in another state. Parent’s new job is far away from Child’s family network and school.
Parental Familiarity: “Each parent’s knowledge and familiarity of the child and the child’s needs”
Example: Parent regularly helps Child with schoolwork. Parent stays up to date on Child’s academic performance and medical checkups.
Parental Resources: “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”
Example: Parent has a stable income with benefits, including health insurance coverage for Child.
Home Environment: “The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors”
Example: Parent lives in a small, disheveled living space. When Child is at Parent’s house, Child sleeps on the couch.
Child Stability: “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”
Child is 8 years old. Child has lived in City since birth, where he/she is surrounded by a strong network of friends and family. Child has always attended City’s public schools.
Family Support System: “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”
Example: Parent lives 1 mile away from Grandparents. Grandparents have offered to help with Child’s transportation to/from school.
Parent Health: “The mental and physical health of each parent”
Example: Parent has a chronic health condition that makes it difficult for Parent to leave the house.
Parental Involvement in Child’s Life: “Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities”
Example: Parent has attended all of Child’s parent-teacher conferences and sporting events.
Parent Employment Schedule: “Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child”
Example: Parent works long hours (usually until 9:00 PM) that prevent Parent from spending time with Child after school.
Child’s Needs: “The home, school, and community record and history of the child, as well as any health or educational special needs of the child”
Example: At school, Child requires an individualized education program (IEP) to help with a learning disability.
Parental Performance (Past & Future): “Each parent’s past performance and relative abilities for future performance of parenting responsibilities”
Example: Over the past 3 months, Parent has become very involved in Child’s life. Historically, though, Parent only sees Child once or twice per year.
Parental Cooperation: “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”
Example: Parent A does not get along with Parent B’s new spouse. Parent A refuses to cooperate with Parent B in child custody discussions.
Third-Party Recommendation: “Any recommendation by a court appointed custody evaluator or guardian ad litem”
Example: A third-party legal adviser provides their professional opinion that Child is best suited to live with Parent A.
Criminal History: “Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent”
Example: Parent A was involved in a previous domestic violence incident with Parent B and Child.
Substance Abuse: “Any evidence of substance abuse by either parent.”
Example: Parent is known throughout the community as an alcoholic. Parent has two DUIs.
What are the different types of custody arrangements?
Under Georgia law, there are different types of child custody determinations. Depending on the final custody order, each parent may receive a varying degree of authority in physically caring for the child and making decisions on behalf of the child.
There are two primary considerations associated with child custody: (a) physical custody, which refers to when, where, and how the child will live with each parent, and (b) legal custody, which refers to how each parent is involved in making decisions related to the child’s medical care, education, religion, and extracurricular activities.
Sole Custody: In some cases, the court vests all custodial duties in a single parent. The parent is therefore the primary physical custodian of the child (caring for the child the majority of the time) and the sole legal custodian of the child (making all important decisions on behalf of the child). In general, awards of sole custody are rare.
Joint Physical Custody: In many cases, parents share some degree of joint physical custody. For example, one parent may care for the child from Sunday morning through Wednesday evening, while the other parent cares for the child from Wednesday evening to Sunday morning. In this scenario, one parent will be designated the primary physical custodian while the other parent will be designated the secondary physical custodian. Other examples of joint physical custody include “every other week” arrangements between parents.
Joint Legal Custody: Parents often share some degree of legal decision-making capacity on behalf of the child. In general, Georgia courts prefer that both parents remain an important part of the child’s life, encouraging the parents to reach consensus on issues related to the child’s healthcare, education, extracurricular activities, and religious upbringing. Under joint legal custody, the parents may broadly share decision-making authority, or each parent may receive decision-making authority in specific areas of the child’s life. If the parents cannot reach a joint decision on behalf of the child, the primary physical custodian usually has the ultimate authority in the decision, though the Court may opt to divide the tie-breaking authority between the parents as to the four respective areas.
Who decides child custody?
The judge is the ultimate decision-maker in child custody cases. Under Georgia law, there is no right to a jury in child custody cases. O.C.G.A. § 19-9-3 9(a)(2). This is very different from other areas of family law or divorce law, where juries are sometimes involved.
The judge must exercise discretion in considering all of the facts and issues in the case. At either party’s request, the judge must provide a written court order explaining the basis for the decision.
Can both parents make decisions about the child’s upbringing?
Usually yes. Georgia law encourages parents, when possible, to share joint legal custody of their children—allowing each parent to participate in important life decisions. There are many categories of parental decision making, including:
Education: Your child’s academic development is important. If parents divorce while their child is still in elementary school, middle school, or high school, they will have to make important decisions about their child’s education. Will the child attend public or private school? In which school district should the child attend school? Which parent will be the primary point of contact for parent-teacher conferences, emergencies, or discipline? These are all important questions that affect the legal relationship between parents in their child’s education.
Religion: Parents can differ on their preferences for the religious upbringing of their children. Whether children should attend a parochial school, participate in certain faith-based activities, or join certain religious groups is a profoundly important question facing divorced and separated parents. For many Georgia families, the role of religion in their child’s life is an important part of the child custody case.
Healthcare: What happens when/if your child is injured or sick? As doctors consult your family about different treatment options, a decision will ultimately have to be made about the child’s course of treatment. In making these difficult medical decisions, courts may allow one party to have final decision-making powers for all non-emergency healthcare decisions.
Extracurricular Activities: Kids are busy. They are involved in sports, after school activities, hobbies, clubs, and active social lives. To juggle this schedule of extracurricular activities, parents have to make important decisions about how their children spend this time. Both parents play an important role in these after-school activities, like transportation requirements and payment of activity fees. The court may grant one parent with the power to make final decisions on these issues.
Which parents can have access to private information about the child?
Parents with legal custody of their children have the right to access private information about the child. From academic information (like grades and disciplinary history) to medical records (like pharmaceutical prescriptions and medical diagnoses), each parent usually has the right to obtain private information about their child. In some cases, each parent must go as far as to “provide the other with passwords for access into the child’s school or medical records.” Tinnermon v. Tinnermon, Cobb County Superior Court (2015).
What is a Guardian ad Litem?
A Guardian ad Litem is an officer of the court that receives specialized training in representing the best interest of the child in a custody case. The job of the Guardian ad Litem (sometimes called “GAL”) is to “assist the court and the parties in reaching a decision regarding child custody, visitation and child-related issues.” Georgia Uniform Rules for the Superior Courts § 24.9. It is an important distinction to note that the GAL does not represent the child, nor the child’s wishes. The GAL represents the child’s best interests, which sometimes may differ from what the child wants.
With court approval, the GAL has the power to:
- Review “all records maintained by any school, financial institution, hospital, doctor or other mental health provider…”;
- Conduct an examination of “any residence wherein any person seeking custody or visitation rights proposes to house the minor child”;
- Request “the court to order examination of the child, parents or anyone seeking custody of the child, by a medical or mental health professional, if appropriate…”; and
- Participate in “all hearings, trials, investigations, depositions, settlement negotiations, or other proceedings concerning the child.”
Georgia Uniform Rules for the Superior Courts § 24.9(4).
To assist the court in making a final custody determination, the GAL will submit a written report of its independent evaluation of the child’s best interests.
Can child custody be split 50/50?
In theory, yes. Parents can share joint legal custody and joint physical custody of their children. This is common among many Georgia families, especially where parents are geographically close to one another and can easily transport the child to and from each home for purposes of joint physical custody.
Practically speaking, though, it is difficult for parents to receive a true 50/50 split of their child’s time and decision-making capacity. For example, if each parent has a 50% vote in making decisions on behalf of their child, there are going to be lots of instances where parents are stuck in gridlock. To avoid this scenario, one parent may have primary legal custody, allowing that parent to have the final say when parents disagree.
Similarly, even though parents may share joint physical custody, it is unlikely that the child will spend exactly 50% of time with each parent. From week to week, there are likely to be minor fluctuations in parenting time. Still, parties are still expected to comply with the court’s parenting plan as closely as possible.
How do courts determine if the mother or father should get custody?
Do grandparents have a right to visitation or child custody?
Under Georgia law, parties are encouraged to work together so that grandparents can remain an important part of the child’s life and upbringing. However, the Georgia State Constitution and the United States Constitution provide natural parents with special constitutional protections related to the care and upbringing of their children.
Generally, a parent’s wishes outweigh those of grandparents. Upon either parent’s objection, grandparents do not have a right to visitation or custody of their grandchildren. See Brooks v. Parkerson, Georgia Supreme Court (1995). Only in unique circumstances, like when neither parent is fit to care for the child, will grandparents play an outsized role in child custody proceedings.
Does alcoholism or drug use affect child custody?
However, the court will evaluate a wide range of issues related to the parent’s history of substance abuse, alcoholism, pharmaceutical addiction, or recreational drug use. For example, the court will consider the severity of the parent’s substance abuse, the time period of the substance abuse, and whether the parent has sought treatment.
Can child custody be changed?
Yes. Child custody orders can be modified by either party. Actions to modify child custody are usually brought in response to a material change in circumstances.
The party requesting modification will likely argue that the best interests of the child are served by modification of the existing custody order. Custody modifications may arise in the event of (a) remarriage or relocation of either parent, (b) serious offenses committed by either parent, (c) military deployment of either parent, or (d) the child reaching a sufficient age to select the primary custodial parent.
Actions for child custody modification are common in Georgia. If you are seeking to modify or change an existing child custody plan, contact an attorney to discuss your legal options.
Can you appeal a child custody case?
After the child custody case is resolved in the county superior court, the case may be appealed to the Georgia Court of Appeals and, subsequently, to the Georgia Supreme Court.
Can parents agree to child custody in a prenup (i.e., a prenuptial agreement)?
As an example, when the parties executed the prenup, both parties were gainfully employed, were upstanding citizens with no criminal convictions, each owned real property, and stated that if they divorced, they each wanted 50/50 custody. Ten years later when the parties filed for divorce, they have a 6-year-old and a 3-year-old. The mother has received two DUI arrests since the birth of the youngest child and has been known to hang out at the local bar until 1 a.m. several nights a week, leaving the father home with the children. The mother has been demoted at work and has had her license suspended. At this juncture, it would not be in the best interest of the minor children to spend 50/50 time with their mother given her substance abuse issues. As such, the Court cannot depend on a document from 10 years ago that did not account for how people and circumstances change over time.
Can child custody be settled out of court?
While parties can engage in out-of-court negotiations, the parties should always file any agreements with the court so that the custody agreement is legally enforceable. The parties may also settle child custody disputes in other settings like mediation or settlement conferences. A case will only proceed to trial if the parties cannot resolve the issue of child custody on their own.
What is child custody mediation?
Because mediation takes place out of court, it is usually more relaxed and conversational than the rigid procedures inside of a courtroom. As the parties seek to work out their disagreements, a mediator presides over the meeting to resolve conflicts and help the parties reach an agreement.
The court may also order parties to attend other forms of “alternative dispute resolution” to settle issues out of court, including, for example, arbitration.
What happens if custody mediation fails? The case will usually just progress to the next phase of the legal proceeding. In some cases, the judge may order the parties to attend a subsequent round of mediation or attend a judicially-hosted settlement conference. In other cases, the parties may proceed with discovery or, ultimately, trial.
Failure to reach an agreement during mediation does not preclude the parties from reaching an out-of-court settlement later on.
When can a child decide custody?
Ages 11-13: In making a final custody decision, the judge may consider what the child wants. Nonetheless, the child’s wishes are not binding on the court.
Ages 14+ : The child’s custody preference is presumptively valid. However, the judge can override the child’s wishes if there are strong grounds to believe that the selected custodial parent will not serve the best interests of the child. So while a child of 14 or over may elect what parent to live with, this election must still meet the Court’s custodial standards and best interest standard for the child.
How does moving or changing schools affect child custody?
According to the Georgia Supreme Court, “remarriage and relocation directly affect a child but they do not automatically warrant a change in custody.” Scott v. Scott, Georgia Supreme Court (2003). The court explains that some situations like “the relocation of residence to a superior school district or a safer neighborhood” may serve the best interests of the child.
However, the court will assess all relevant factors related to the relocation, including any potential trauma or difficulty the child may face in adjusting to the new location.
What are child support obligations?
Child support obligations are court-ordered monthly payments to the primary custodial parent “to maintain minimally adequate housing, food, and clothing for the child [or children] being supported…and to provide other basic necessities, as determined by the court or the jury.” O.C.G.A. § 19-6-15.
Child support obligations are not the same as alimony, which is money paid to support the ex-spouse after divorce. Child support payments only cover children that the parent has a legal obligation to support (i.e., those with a legitimated interest in the child), and does not extend to stepchildren or other minors that are not the children of the payor.
Unless modified, child support payments continue “until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” O.C.G.A. § 19-6-15(e). However, if a child is still enrolled in high school at age 18, child support will continue until such time as the child graduates, but not to exceed the age of 20 years.
What is a court-approved parenting plan?
In all child custody cases, parties are required to submit a proposed parenting plan to the court. In the court’s final decision, it will issue a permanent parenting plan that states how the parents will address different parenting issues.
The court’s final parenting plan lays out a legally binding custody arrangement, specifically outlining how the parties will address:
- Physical custody and visitation rights, including when the child will spend time with each parent during the upcoming year;
- Legal custody as it relates to how the parents decide issues of healthcare, education, religion, and extracurricular activities;
- Holidays, vacations, birthdays, and school breaks, including which parent will have custody during those periods; and
- Transportation arrangements to and from each parent’s house or a central meeting location.
For more information about Georgia parenting plans for divorced and separated parents, contact the team at Fennell, Briasco & Associates™ for a free legal consultation.