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Child Custody Myths – Setting Things Straight

There are many child custody myths that exist amongst people navigating their way through the family law system. Myths within family law usually formulate due to the uniqueness of the law in question. Each individual child custody/ family law case is different and unique and it is therefore difficult to predict the outcome of a case on the basis of other cases. Only an attorney or those with years’ worth of experience may predict what may happen with a case based on previous legal precedence. In fact the probability of you achieving your desired results within your case may be dependent on the particular judge presiding over your particular case and how he or she perceives evidence in relation to their personal perceptions of the law. It is within this murky realm in which myths of child custody are born. The following are a list of myths in relation to child custody and the ways in which the myths are debunked.

1) My Child Can Testify About Which Parent He or She wants To Live With
False. Courts generally dislike any person within a case that insists on exposing a minor child to the court system or environment—unless the testimony is absolutely necessary and is of a serious nature; such as, abuse or neglect. Also the Georgia courts will generally only consider the testimony of a child in regards to which parent a child will reside with between the ages of 12-14. In some situations, a judge will only take the testimony into serious consideration if the child is age 14 or older. Even in the event that the child’s testimony is permitted into the case the judge will only rule in regards to the child’s testimony if the judge believes that the placement is in the child’s best interest. Any insistence on testimony after a judge has clearly stated that he or she does not wish to take the testimony into consideration will ruin the judge’s impression of you and influence the judge’s decision –opposing your favor.

2) Mothers Are Always Awarded Custody of the Children
False. Judges in the state of Georgia award custody placement of the children based on the, “best interest of the children”. In most cases the father has just as equal of a chance at receiving custody as the mother if the case is contentious. If it can be proven that the father as opposed to the mother would provide for the “best interest of the children” then the child will be placed in the father’s custody as opposed to the mothers. The following are some ways in which the best interest of the children is assessed:
• Who has provided for the majority of the care
• Work and Employment status and schedule
• Level of Education
• Mental Health Status
• Alcohol or Drug Dependencies
• Physical Ability to Care
• Physical and Overall Appearance
• Criminal or Arrest Records
• Community Reputation

3) I Don’t have to Exchange for Visitation Since Child Support is Not Paid
False. Even if the other parent has not fulfilled their child support obligations they are still entitled to visitation. Refusal of visitation even in the absence of child support can put in the trouble of being in contempt of court for not following court orders. Under no condition does a failure of child support account for a restriction to the non- paying parent’s right to visitation with their child. If you are not receiving child support payments you can contact your local child support enforcement agency to receive payments and or file for a contempt of court for nonpayment of child support. Only the court can legally modify your current order to restrict visitation. In some cases the court may modify an existing order to change the parameters of visitation or to restrict visitation. Most of the visitation restrictions applicable will only be implemented if the court believes that the child is in danger during his or her time with the visiting parent and it is provable in court. If the court believes that the visitation may in fact be placing the child in danger or “in harm’s way” the court may limit visitation to no overnight visitation or may issue supervised visitation.

4) Being the First to File for Divorce will Give Me an Advantage in Receiving Custody
False. Being the first to file in a case does not automatically give you an advantage in a child custody situation. The only way to obtain an advantage in a child custody case is to literally be the parent that is in “the best interest of the child”. In most cases this is either a close competition or there is no competition. In other words you either fit the bill as the parent that is going to provide better for your child or you do not. In the cases in which custody is a close call parents may have custodial responsibilities split down the middle. In other case one parent will receive primary custody while the other parent receives visitation. It is important to remember that all cases will be based off of facts and that the parental dynamic can change over time making the visitation parent better suited to be the primary custodian of the children. In the end custody is either decided by the judge or by negotiated agreements in mediation—not by who files for custody first.

5) Mothers are Always More Likely to Get Custody of Younger Children
False. The custody of younger children is still determined on the “best interest standard”. In accordance to the best interest standard, “a court must take into account a series of statutorily specified factors when determining a custody schedule or parenting plan.” In most cases of younger children it is the preference of the court for both parents to be more equally involved in the time with the minor child if the terms can be agreed upon. Generally the court will favor the parent that has provided the most amounts of care and support during the life of a younger child. In some cases the primary custody will be appropriately awarded to the father if he proves to be the primary caretaker since birth.

6) Sole Custody Means The Other Parent Does Not Have to Pay Child Support
False. Even if the other parent doesn’t receive child custody they will still be required to pay child support. Determinations of custody do not have bearing on the requirements of child support. Custody awards may however account for the deviations of the amount of child support owed. For example if a parent does not receive equal parenting time they may still be obligated to pay child support unless their parental rights have been terminated. Likewise, a parent with sole custody may still receive substantial amounts of child support on the basis of income and child support deviations.

7) Primary Custody Means I Get to Make All the Decisions for the Children
False. Primary physical custody does not automatically determine that you have final decision making for the child. However, if your court order specifically states that the primary custodian has the legal ability to make all final decisions then you may make the decisions for your child in compliance to court order. Legal custody gives parents the ability to make decisions in relation to the child’s, education, health care, religion, and other major life decisions. If parents have minimum levels of cooperation most courts will still award joint legal custody and allow for parents to share in legal decision making abilities. Meaning that even if a parent is only receiving visitation they may still be able to have legal decision making in major decisions for the child’s wellbeing while in the other parents physical custody. However, if the parents do not have minimum levels of cooperation legal decision making will only be awarded to one parent. Even in the event that the legal decision making is awarded to one parent that parent may still be required to inform the other parent of their decision and or the well-being and care of the child. In some even rare cases the parents may not be required to discuss major life decisions in relation to the child and only be required to inform the other parent if the decision becomes problematic—this will be outlined in court order.

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