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Determining Child Custody

Georgia Child Custody Divorce Lawyers and Family Law AttorneysSimilar to many other states, Georgia has its own unique laws and regulations that Courts follow when it comes to determining child custody in divorce and family law cases. In an event of divorce, it is important to understand the basics of custody laws that state of Georgia adheres to. When determining the custody award, the Courts look at the “Best Interest of the Child” standard. This article is going to highlight the basics of custody laws, and will focus on describing different types of custody arrangements that can be awarded. As always, it is generally advised to consult with an experienced divorce and family law attorney to determine the best possible custody arrangement for your specific situation.  Georgia law governs child custody under O.C.G.A. § 19-9-3.

Defining Child Custody

In an event of divorce, child custody defines who has legal rights pertaining to the child. Under the Georgia law, the child custody can be divided into two types:

  • Legal Custody
  • Physical Custody

Legal Custody

Under Georgia law, legal custody determines which parent will have the authority to make the major decisions in the child’s life in the areas of:

  • Medical (Non-Emergency) Treatment
  • Education
  • Religion, and
  • Extracurricular Activities

Legal Custody can be further divided into Sole Legal and Joint Legal

  • Sole Legal Custody: only one parent gets the primary authority to make the decisions concerning child’s major life areas.
  • Joint Legal Custody: both parents equally get a say in the important areas pertaining to the child’s life.

Physical Custody

Under Georgia law, physical custody determines with which parent the child will primarily reside with. In the state of Georgia, most courts give one parent primary physical custody, while the other parent is deemed to be the non-custodial parent. The non-custodial parent is generally provided with the visitation rights.

However, often times, the visitation rights are confused with the custodial rights. As illustrated by reviewing Georgia law ( See O.C.G.A. § 19-9-22(a) ) visitation is not the exact same thing as custody. The non-custodial parent is provided with the parenting times under which the non-custodial parent may visit the child. Furthermore, under the Court’s discretion, the visitation may be supervised depending on the external factors.

Types of Physical Custody

  • Joint Custody: If the court awards the joint custody, then both the parents equally get the right to make decisions in the child’s life. If the court does award joint custody to the parents, it is likely that a joint custody award will likely result in lower or no child support. However, it is important for both parents to mutually agree on the important decisions pertaining to the child’s lifestyle. If both parents fail to agree, then the Court is like to be hesitant in awarding joint custody.
  • Sole Custody: On the contrary, if sole custody is awarded, only one parent gets the custodial rights, while the other parent is left with no rights. Generally, it is very unlikely that the Court will award sole custody, and sole custody is likely to be awarded in unusual circumstances. However, it is important to remember that just because a Court awards sole custody, the other parent’s responsibility to pay child support does not vanish.
  • Split Custody: Split custody is less common, but an option when there are more than one minor child. Under the split custody situation, two or more children are involved, and one parent is the custodial parent for at least one child and the other parent is custodial parent for the other child. Splitting custody is likely not favored as it results in complicated child support calculations. Furthermore, if split custody is, the bond between the siblings is likely weakened. Split custody is more common in situations where the children are older and starting to voice a preference about whom they would rather be with.

Making the Child Custody Determination

When making the custody determination, the Court looks to the “Best Interest of the Child” standard. However, in many cases, defining the standard is not agreed upon and litigated by the parties. To determine what constitutes as “Best Interest of the Child” standard, the judge looks to what will best promote child’s welfare. The judge looks at several factors, including, but not limited to (O.C.G.A. § 19-9-3(a)(3)):

  • The emotional ties between each parent and the child
  • The emotional ties between the child and his or her siblings
  • Each parent’s knowledge and familiarity with the child and the child’s needs
  • The capacity of each parent to provide for the child the necessities and love and affection
  • The home environment and the home stability in which child can grow.
  • 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
  • The mental and physical health of each parent
  • Evidence of physical child abuse or criminal history of either parent
  • Each parent’s involvement in the child’s life
  • Each parent’s past performance
  • The home, school, and community record and history of the child
  • Any health or educational special needs of the child
  • Parents history with substance abuse

However, in some cases, a judge might appoint a Guardian Ad Litem (GAL) who will determine what is in the best interest of the child. It is important to remember that a judge is not required to follow GAL’s recommendation. Furthermore, if the child is over fourteen (14), the child can decide with whom he wants to stay with by signing an Affidavit of Election of Custody. Therefore, it all depends on case by case basis.  When it comes to determining child custody, Courts have to determine what will be in the best interest of the child. In an event of divorce, a child’s well being should be given an utmost priority.

Events leading up to divorce are known to have tremendous impact on a child and his/her well being. Therefore, determining which parent should the child get a choice to stay with should be kept as simple as possible. Therefore, it is important to make a wise decision by consulting an experienced divorce and family law attorney.

If you are facing a child custody issue, call us today at 770-609-1247 to speak with an attorney and schedule a consultation.

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