Among the general public, there is an assumption that mothers (rather than fathers) are more likely to receive custody of their children. Statistically, there is some truth to this belief.
Statistics show that, across the United States, mothers receive primary custody rights in more than two-thirds of all custody cases. Nonetheless, research from the United States Census Bureau suggests that some of these demographic trends may be changing. As of 2017, single fathers make up a greater proportion of single custodial parents than at any point in recent history.
While gender-based norms have an effect on child custody cases, it is important to remember that every custody case is different. There is no predetermined methodology for granting custody rights in preference of either the mother or the father. In every case, there is a complex web of legal rules and analyses that are designed to protect the best interests of the child.
Custody disputes are never easy, but the team at Fennell, Briasco & Associates™ is here to make it easier. As licensed Georgia attorneys, our team has proudly helped parents throughout Metro Atlanta and North Georgia in developing their best case for seeking child custody.
With a proven track record in family law, our team is ready to serve as your trusted legal adviser. Contact our team today at (770) 956-4030 for a FREE consultation.
Parenting as a Constitutional Right
As a starting point, there are some constitutional protections involved in child custody laws.
Under both the United States Constitution and the Constitution of the State of Georgia, biological parents have a strong constitutional interest in the upbringing, care, and custody of their children. According to one case by the Georgia Supreme Court, the right for natural parents to participate in the care and custody of their children is “fiercely guarded” by our legal system. Patten v. Ardis, Supreme Ct. of Georgia (2018). Yet, this right is not absolute. Courts routinely make determinations to modify or even terminate parental rights to promote the best interests of the child.
Similarly, the Equal Protection Clause of the United States Constitution requires that similarly situated men and women be treated equally. State laws cannot, on their face, grant preference to either men or women in determining parental custody rights.
From a constitutional perspective, if both the mother and father are fit to be primary custodial parents, then each parent is “theoretically considered to have co-equal rights to custody of children[.]” See Susan Beth Jacobs (“Hidden Gender Bias Behind ‘The Best Interest of the Child’ Standard in Custody Decisions”), Georgia State University Law Review (1998).
But, when it comes to making final custody determinations, courts deal in reality rather than constitutional theory. From a practical standpoint, a child can only be in one place at a time; a child can only attend one school at a time; and, a child can only live in one household at a time.
Courts are therefore put in the difficult position of evaluating the best interests of the child, while also seeking to uphold each parent’s constitutional right to participate in their child’s upbringing.
When assessing a father’s custody rights, the first consideration is often whether the father has a legal interest in the child. Both married and unmarried fathers have the right to seek custody of their children.
Under O.C.G.A. § 19-7-22, a father has a legal interest in seeking custody of a child if:
- the father was married to the mother during the mother’s “usual period of gestation” (Example: the father was married to the mother during her pregnancy, but the parents later divorce or separate);
- the father marries the mother after the birth of the child and the father recognizes the child as his own (Example: the mother and father become married after the child’s birth when the child is a toddler, but the parents later divorce or separate);
- the father seeks “legitimation” of the child (Example: the child is born out of wedlock and the father seeks to establish legal rights to the child).
For many divorced parents, paternity may not be an issue in child custody proceedings. When a mother and father obtain a divorce and neither party contests the other’s legal interests in the child, paternity rights are unlikely to become an issue.
On the other hand, paternity is a major legal issue in cases between unmarried parents.
Legitimation is the process by which “[t]he biological father of a child born out of wedlock may render his relationship with the child legitimate” by filing a legitimation petition in the relevant county’s superior court. O.C.G.A. § 19-7-22(b). Legitimation may require genetic testing to prove the biological relationship between the father and the child. If proven, the father will have legal interests in the child, including the right to seek custody, visitation, and guardianship of the child. Conversely, legitimation may also give rise to the father’s obligation to pay child support. See O.C.G.A. § 19-7-22(f).
The Legal Standard
Under Georgia law, there can be no gender-based preference in granting custody to either the mother or the father. O.C.G.A. § 19-9-3(a) states that “there shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.”
Instead, Georgia law states that “[i]t is the express policy of this state to encourage that a child has continuing contact with parents…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.” O.C.G.A. § 19-9-3(d).
A long-held principle in Georgia family law is that any award of custody must be made “in accordance with the best interests of the child…and that this consideration alone must control the judgment of the court.” Pruitt v. Butterfield, Supreme Ct. of Georgia (1940). The courts apply a factors-based approach to assess which type of custody arrangement will most likely achieve the child’s best interest. O.C.G.A. § 19-9-3(a)(3) lists 17 non-exclusive factors for evaluating the long-term interests of the child.
- the love, affection, and emotional ties between the parent and the child;
- the capacity of the parent to care for the child’s emotional and developmental needs;
the home environment offered by each parent;
- the child’s existing living arrangements and the importance of stability in the child’s life, so as not to cause any major disruptions to the child’s development;
- the mental and physical health of each parent;
- the parent’s involvement in the child’s social, educational, and extracurricular functions;
- the presence of other family members to provide a support system for the child; and
- the employment schedule of each parent.
Without giving preference to either the mother or the father, the court will assess these factors in issuing a final custody determination.
Types of Custody Determinations
During a child custody proceeding, the court will seek to issue a final order for determining a custody plan for the child. The court will also issue a final order for the parenting plan between the mother and father, specifying how the parents will deal with a wide range of issues like visitation, holidays, transportation between each parent’s house, and the allocation of decision-making authority on behalf of the child.
There are several types of custody rights under Georgia law. There are two key dynamics at play with child custody determinations: (a) physical custody vs. legal custody, and (b) sole custody vs. joint custody.
- Physical Custody, defined under O.C.G.A. § 19-9-6(6): Physical custody apportions the child’s physical care between parents. If granted joint physical custody, then each parent must care for the child “in such a way as to assure the child of substantially equal time and contact with both parents.” Joint physical custody occurs in cases where both parents are fit and proper to care for the child and there are practical methods for ensuring that each parent receives an equal amount of time with the child. Under a joint physical custody arrangement, parents may alternate days or weeks in care of the child, with roughly equal time spent with each parent. Joint physical custody may not be possible in cases where parents live in different geographic areas.
- Legal Custody, defined under O.C.G.A. § 19-9-6(5): Legal custody distributes decision-making authority between the parents. If the parents are granted joint legal custody, then each parent has an equal right and responsibility “for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training.” The court may also “designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” For example, one parent may have decision-making authority for issues related to the child’s education, while the other parent may have decision-making authority for issues related to the child’s health insurance coverage. In cases of gridlock (where parents cannot agree on a decision for the child), the court may grant one parent to have the final say on the issue.
- Sole Custody, defined under O.C.G.A. § 19-9-6(11): Sole custody vests both legal custody and physical custody in a single parent. If granted sole custody, the sole custodial parent has primary physical custody of the child, meaning that the child will spend a majority of time with that parent. The sole custodial parent also has “the rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training.” A noncustodial parent, in response, is granted only a right to visitation or parenting time. By definition, if neither parent is granted sole custody of the child, then the parents must share in some sort of joint custody arrangement.
- Joint Custody, defined under O.C.G.A. § 19-9-6(4): Joint custody, in most cases, refers to a custody arrangement in which the parents share in both joint physical custody and joint legal custody of the child. Depending on the final custody order issued by the court, “joint custody” may also refer to other specialized custody arrangements, depending on the specific facts and circumstances of the custody proceeding.
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Understanding Visitation Rights
Visitation rights (sometimes called visitation privileges) afford a parent the ability to see and care for the child at specified times, as based on the court’s parenting plan. Visitation rights allow the parent to remain an integral part of the child’s life, while still vesting physical custody in the other parent. When it comes to a father’s visitation rights, Georgia law has reached the following legal conclusions:
- Overview of Visitation Rights: Divorced fathers have a “natural right” to visit and access their children in accordance with the terms of the parenting plan. Only under exceptional circumstances may this right be denied to a father. See Shook v. Shook, Georgia Supreme Ct. (1978).
- Visitation Schedules: A father has the right to know the extent of visitation rights. The court’s parenting plan should include the “times, places and circumstances for visitation” between the parties. See Shook v. Shook, Georgia Supreme Ct. (1978).
- Modification: Fathers have a right to seek modification of visitation rights or custody determinations. Especially in light of “a change in circumstances affecting the interest and welfare of the minor children,” a father may petition the court to modify the existing order for visitation or custody. Parker v. Parker, Georgia Supreme Ct. (1978). For example, if the mother moves (making it difficult for the father to visit the child), the father may request a modification of the existing order. See, e.g., Houck v. Houck, Georgia Supreme Ct. (1981) (permitting the modification of visitation rights after the mother moved from Georgia to South Carolina).
- Child Input: A father retains the right to visitation, even if the minor child objects to seeing the parent at that particular time. See Green v. Dawson, Georgia Supreme Ct. (1953). For example, if the minor child wants to spend the weekend at a friend’s house, the father’s visitation rights should override the child’s weekend plans. However, there may be some legal nuances here depending on the age of the child.
- Alimony & Child Support: A father’s nonpayment of alimony or child support does not affect the right to visitation. As upheld by the Georgia Supreme Court in Price v. Dawkins (1978), “visitation rights should not be made to depend upon whether or not child support or alimony has been paid.” Even if the father is behind on such payments, he cannot be denied visitation privileges.
Father’s Rights vs. Third Party Rights
There is a special body of law related to a parent’s rights in relation to third-party rights. What if, for example, the child lives with grandparents, an aunt or an uncle, or another relative? Can the father petition to regain custody? This is a common theme in Georgia family law cases related to both custody and visitation rights.
In general, a biological parent has a constitutionally protected interest that generally outweighs that of third parties. For a third party to remain in custody of the child, the third party must prove by clear and convincing evidence that (1) “the child will suffer physical or emotional harm if custody were awarded to the biological parent” and (2) “an award of custody to [the third party] will best promote the child’s welfare and happiness.” Clark v. Wade, Georgia Supreme Ct. (2001).
Assuming that the father is fit to maintain physical and legal custody of the child, then the biological father’s custody interests will likely prevail. Nonetheless, this body of law is complicated. You should always speak with an attorney regarding the particular facts and circumstances of your case, especially regarding the role of grandparents or other family members in the child’s life.
Find a Child Custody Lawyer in Georgia
If you are having issues with child custody in Georgia, contact the family law attorneys at Fennell, Briasco & Associates™. Our team has worked with hundreds of parents across North Georgia and Metro Atlanta to help them advance the case for custody of their children.
With expert negotiation and litigation skills, our family law attorneys will fight on your behalf to ensure you can maintain a long-term presence in your child’s life. Contact us today for a FREE legal consultation.