Child Custody 101 in Georgia Divorce

Our child custody 101 guide provides answers to common questions concerning child custody laws in Georgia and what can happen in your divorce.

Child Custody

Our child custody guide serves to demystify one of the most important aspects of a divorce with children in Georgia. After reading this article you can have a more productive conversation with your divorce law firm.

What is Child Custody?

In general terms, child custody refers to the legal assignment of post-divorce authority for, and limitations of, a parent or guardian. Specifically, this pertains to identifying which person will provide the primary residence for the child(ren). This person is referred to as the custodial parent. The other parent, referred to as the non-custodial parent is usually entitled to visitation, meaning time during which the child(ren) will be with the non-custodial parent at the parent’s home.

What about custody if we were never married? In Georgia, the matter of custody for people who were never married is quite simple. Ths birth mother shall have sole custody. The paternal parent generally has no legal rights to obtain custody in a normal situation. If there has been a formal legitimation process, the father has the potential to pursue custody rights.

Paternity or Legitimation? For the father of a child born out of wedlock, the path to fighting for custody or visitation can be confusing. A good explanation of the difference between Paternity and Legitimation is found on the FindLaw website. A recent article states, “In Georgia, paternity doesn’t give an unmarried father visitation or custody rights to his child. Georgia law differentiates between paternity, (establishing the identity of the child’s biological father) and legitimation, which establishes a legal relationship between father and child. A father can receive legitimation at the same time or after paternity is established, but only legitimation allows an unmarried father to seek custody or visitation.”¹

Types of Custody

• PHYSICAL CUSTODY refers to with whom a child(ren) lives on a day-to-day basis. When a parent has physical custody, it means that the child primarily lives with that parent, and that parent is responsible for the child’s daily care and needs, such as food, housing, clothing, shelter, etc.
• LEGAL CUSTODY refers to the right to make decisions regarding lifestyle aspects of the child(ren) life. This typically includes schooling, healthcare, religion, extracurricular activities, and other considerations that directly affect the child’s life.

Joint vs Sole Custody

The assignment of joint and sole custody is not the same in every divorce. Find the section below which discusses factors courts consider when determining custody.

Joint custody is a custody arrangement in which both parents share responsibility for making important decisions about their child’s upbringing, such as education, healthcare, and religious upbringing. In addition to sharing decision-making responsibilities, joint custody often involves a shared physical custody arrangement, where the child spends significant time living with each parent.

Sole custody is a custody arrangement in which one parent has full responsibility for making major decisions about the child’s upbringing.The child(ren) live primarily with the custodial parent. The non-custodial parent may have visitation rights, but does not have the same decision-making authority as the custodial parent.

Does the type of custody have other effects? Yes. Custody decisions affect more than just time with children. It can impact who gets tax deductions, child support payment amounts and more. In fact, the Georgia Legal Aid website mentions this, “Joint custody often results in lower or no child support. It also means that both parents must agree on decisions for their child. Joint custody will not work for you or your child if you and the other parent cannot agree. Think carefully about joint custody and talk to your lawyer. “².

What Factors are Considered for Determining Child Custody?

In determining child custody arrangements, the court will consider several factors:

• Age(s) of the child(ren)
• Ability of each parent to provide for the child’s needs
• Relationship the child(ren) have with each parent
• Any history of parental abuse or neglect
• Any history of a parent’s domestic violence, substance abuse, or other undesireable behaviors

In determing child custody, the bottom line is that the court’s goal is to determine what is in the best interests of the child. Per the ChildWelfare.gov website, “Although there is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child. “Best interests” determinations are generally made by considering a number of factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being the paramount concern.” ³

Are Mothers More Likely to Get Child Custody in a Divorce?

Georgia divorce laws require a court to be unbiased when deciding custody in a divorce. While mother’s certainly have a clear opportunity to gain custody, there is no particular advantage in being the mother. Because the court is obligated to consider what is in the best interests of the child the sex of the parent is generally meaningless.

Can a Father Get Custody of Children?

Yes. It is entirely possible for a father to get custody of his children in a divorce. State laws require the court to be unbiased when considering which parent should have custody. Because the court is obligated to consider what is in the best interests of the child the sex of the parent is generally meaningless.

Can Grandparents be Awarded Custody of Grandchildren?

Yes, in some divorces the court may award custody of minor children to other adult family members. This is often the case when both parents have substance abuse issues, domestic violence issues, or otherwise create a detrimental home environment.

Can a Step-Parent Get Custody or Visitation?

It is possible that a step-parent, or blood relative, can get custody or visitation. This can happen only if the court grants a status of Equitable Caregiver. Under the 2020 Equitable Caregivers Act a step-parent, and certain other caregivers, are potentially eligible to petition the court for custody or visitation rights with a child.

Per Georgia law, as written in part, in O.C.G.A. § 19-7-3.1 the law provides that Equitable Caregiver Status applies when the person has, “Established a bonded and dependent relationship with the child, the relationship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted or behaved as though such individual is a parent of the child; Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation; and demonstrated that the child will suffer physical harm or long-term emotional harm and that continuing the relationship between such individual and the child is in the best interest of the child”⁴

Can a Child Choose Which Parent They Want to Live With?

Custodial Election is a term which refers to the ability for a minor child to choose with which parent they want to live. In Georgia, any minor child 14 years old or older has this privilege.

Per Georgia law, O.C.G.A. § 19-9-3 specifically states (in part), “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 cistody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.”

In addition, a minor child that has reached the age of 11 years old has the ability to express their desire as to which parent they choose to live. The decision of a child aged 11-13 does not have as much influence but it is certainly considered by the court.

How is Child Custody Determined?

Generally, through their respective lawyers, the divorcing parents can reach agreement on the terms of custody. The negotiated terms will be made part of the Settlement Agreement which the court reviews prior to issuing a final decree.

If the two parties are unable to reach agreement, the matter of custody will be decided by the court. In such an event, the court will review available information and may ask for additional information before making a determination.

When the issue of custody has been decided, it will be made part of the divorce Parenting Plan. The issue of custody then may not be revisited (modified) for a period of at least two years. Click the following link to learn more about how to change child custody in a divorce.

Visitation and Time Sharing

What is Visitation and Time Sharing?

Non-custodial parent visitation refers to the legal right of a parent who does not have primary physical custody of their child to spend time with the child on a regular basis. When parents divorce or separate, a custody arrangement is typically established that outlines which parent will have primary physical custody of the child, and the non-custodial parent is granted visitation rights.

What Do Common Time Sharing Arrangements Look Like?

Visitation rights are part of the formal Parenting Plan. The specifics of a visitation schedule can be sculpted in virtually any manner. For example, the non-custodial parent may have the right to visitation with the child every other weekend, and additional time for school breaks, holidays, or special family events.

What is Reasonable Visitation?

Reasonable visitation refers to a type of child custody arrangement in which the non-custodial parent has the right to be with their child at times and places that are mutually agreed upon by both parents. The specific terms of reasonable visitation can vary depending on the individual circumstances of the case, but generally, it allows for a more flexible schedule that can be adjusted to accommodate the needs of both the child and the non-custodial parent.

In a reasonable visitation arrangement, the parents are encouraged to work together to come up with a visitation schedule that works for everyone. Common topics are school schedules, extracurricular activities, and the non-custodial parent’s work schedule. The goal of reasonable visitation is to promote a healthy and meaningful relationship between the non-custodial parent and the child while still taking into account the best interests of the child.

With regard to holidays and school breaks, a common approach is to alternate years for each on. For example, a child’s Thanksgiving time is spent with one parent in even number years and with the other parent in odd number years. School break time may be split 50/50 between parents. Ultimately, it all comes down to what you and your ex-spouse agree to do.

What Does Supervised Visitation Mean?

Supervised visitation is a type of child custody arrangement in which a court orders that the parent who does not have primary custody of a child is allowed to see the child only under the supervision of another adult, typically a trained supervisor, during the visitation time. This type of arrangement may be put in place to ensure the safety and well-being of the child, especially if the non-custodial parent has a history of substance abuse, domestic violence, neglect, or other behaviors that may pose a risk to the child.

Supervised visitation may also be ordered if there are concerns about the non-custodial parent’s mental health or if there is a risk of parental abduction or other safety concerns. The supervisor may be a neutral third party or someone known to the child or the family, such as a grandparent or other family member.

The specific terms of supervised visitation can vary depending on the individual circumstances of the case, and the court may set specific requirements that must be met before the non-custodial parent can request unsupervised visitation in the future. In some cases, supervised visitation may be ordered on a temporary basis, while in other cases, it may be a permanent arrangement.

Custody and Visitation Modifications

How Do I Change Custody or Visitation to Accommodate New Circumstances?

A divorce modification is a formal legal process used to change the requirements previously set forth in a divorce settlement. A divorce modification can be used to amend the terms for any part of a divorce, except for reversing the actual divorce. The reason to file for a divorce settlement modification is simple – things change. Additionally, years after a divorce, children may want to change residence, or your spouse remarries and it impacts support decisions.

Contempt Enforcement and Defense

My Ex Won’t Abide by Custody Arrangements, What Do I Do?

Any deliberate action (or adverse inaction) that results in non-compliance with the Parenting Plan or Settlement Agreement may be considered Contempt. Ideally, a direct conversation can end future problems. If there are chronic acts of non-compliance your divorce lawyer can file a motion for contempt

My Spouse Left the State with My Child, What Do I Do?

Hopefully, your divorce lawyer has included language in your Parenting Plan and Settlement Agreement which addresses out-of-state travel, moving out of state, foreign travel with minor children, and other common situations. If your attorney has not addressed such situations, you will probably need to take legal action. If the other parent has created a situation that cause parental alienation, failure to meet visitation schedules, or similar adverse situations you should be able to get help from the courts.

Friendly Child Custody Guide Advice

Always keep in mind that your children did not volunteer to be caught in the middle of divorce conflicts. Try to maintain a reasonable perspective on what is in the best interests of your children.

With visitation, punctuality for pickup and dropoff is considerate and helps both parties to plan well. At the same time, if the children are enjoying time with a parent at a concert, sporting event or other event, don’t be upset if things run a little past the expected end time.

If you have ideas or suggestions to improve our Child Custody Guide, feel free to share your thoughts in a comment below.

Are facing child custody concerns in your divorce, or need to change the custody arrangements of your divorce? We invite you to contact us to arange a consultation with a family law attorney to discuss your situation.

CREDITS and FOOTNOTES

• ¹ FindLaw’s Team, “Georgia Custody Laws for Unmarried Parents”, April 30, 2018, Available from FindLaw
• ² Georgia Legal Services Program, “Child Custody in Georgia”, June 27, 2007, Available from Georgia Legal Aid
• ³ Staff Writers, “Best Interests Definition”, April 4, 2015, Available from Child Welfare Information Gateway
• ⁴ Staff Writers, “§ 19-7-3.1. Equitable Caregivers”, March 17, 2021, Available from Justia
• Photo by Elina Fairytale, available at Pexels