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Custody and the Best Interest Standard In Divorce and Family Law

In divorce and family law cases involving child custody issues in which the parents cannot agree or come to a settlement on a parenting plan or custody arrangements then the final decision is left up to the discretion of the judge. Other legal professionals appointed by the judge may review the case and provide the judge an expert opinion on how a parenting plan should be arranged. A judge may take expert opinions into consideration when making an opinion, but it is not mandated that they fully adopt all measures outlined by the appointed expert. The overarching factor that determines how a parenting plan is implemented in a judge’s final judgment is dependent on the best interest standard. Judges in Georgia are required to make decisions for minors in child custody cases in light of their opinion of the child’s best interest in terms of welfare, custody, and visitation.

Every divorce or family law case involving child custody issues requires that the parents complete a parenting plan. In cases where the parents cannot agree to complete a parenting plan together they are to create separate parenting plans for submission to the court. A judge and other legal professionals may examine both parenting plans when determining the final decision in the case. The parenting plan in question should outline everything that the child needs in terms of welfare and should also outline divisions of custody; such as, visitation times/dates/transportation, which parent is responsible for decision making authority, and parameters of child access. If a judge feels that there are matters that need to be examined in detail then they will generally appoint a GAL or Guardian Ad Litem to function as a neutral professional to interview parents and or child to determine what is in the child’s best interest. This professional is generally appointed by the court and can therefore make written legal recommendations to the court. In their recommendation a GAL or other legal professional can outline what they believe to be in the child’s best interest and in compliance to court standards.

What Do The Courts Consider When Deciding What is in the Child’s Best Interest?

The following are factors that may be taken into consideration when analyzing a case and implementing the best interest standard. It is also important to note that these are general factors and that if your case has unique circumstances you should consult with an attorney to determine if the circumstances may apply.

1) Each parent’s home environment and ability to care for and nurture the child- child’s access to bathroom, water, food, medical / safety equipment, and other necessities. This may also include child’s supervision in parents care, a child’s access to a bed/ bedroom, and access to age appropriate toys and entertainment.

2) Each parent’s physical and mental health- this may include test results from a psychological evaluation, mental hospital reports / records, prescription medication for mental treatment, physical ability to provide, and any factors that may prevent the parent from physically caring for the child due to disability or illness.

3) Each parent’s emotional ties to the child- If a child has not had previous emotional ties with the parent or the emotional relationship was strained due to absence or neglect then this may impact the process in which the estranged parent receives visitation. In cases of estrangement supervised visitation may be necessary either by itself or in addition to reunification/play therapy with the estranged parent.

4) Each parent’s ability to provide the child with clothing, food, and medical care- The providing care must be adequate and appropriate to the child’s needs and age. Food should not consist of items that are known allergens or items that would be detrimental to the child. Clothing should be seasonally appropriate, be age appropriate, not appear damaged or heavily worn, and should be the correct size and fit. Lastly, medical care should be accessible to the child and all injuries should be addressed with adequate treatment and with medical attention if necessary. In some jurisdictions judges there is a trending pattern in which the judge has ruled based on judicial precedence that the standard of care must be consistent between the houses- which is considered to be in the child’s best interest.

5) The relationship between the child and any roommate, cohabitating girlfriend/ boyfriend, siblings, half-siblings, or stepsiblings who are in either parent’s home- If there are concerns in relation to the welfare of the child in another’s presence then this factor may alter a judges perception on the allowance of exposure to the person or persons and or alter the parameters of visitation/custody.

6) Each parent’s familiarity with the child’s health, educational, and social needs – If one parent has had the primary parental responsibility of caring for the child from birth than it is likely that the judge will continue this pattern of care, if appropriate, as it is generally deemed in the child’s best interest based on familiarity.

7) Each parent’s involvement in the child’s schooling and extra-curricular activities- Decisions concerning extracurricular activities and education will generally be appointed to the child’s parent that has the most involvement in participating in the child’s education and afterschool activities. A parent’s continuous pattern to participate in activities, when stating they will appear, can reflect negatively upon the parent’s ability to have an emotional connection to the child.

8) Each parent’s willingness to foster a relationship between the child and the non-custodial parent – If a parent is not willing to participate in the day to day decisions of the child or is unwilling to have involvement in the child’s life with important events then documented patterns of actions can justify reduced time spent with the child by the parent engaging in that behavior. Furthermore failures of a parent to participate in co-parenting or to function in the best interest of the child will be taken into consideration and can affect a parents custodial or visitation rights.

9) The relative stability of each parent- A parent should have a stable employment record and should be able to provide a stable environment for their child. Custody can be altered on the basis of financial, residential, or emotional stability of each parent. Likewise, visitation can also be altered on the same circumstances concerning relative stability of a parent.

10) History of substance abuse by either parent can be taken into consideration. Recidivism on drug charges and repeated drug treatment programs can demonstrate a pattern that may be concern for the parent’s ability to care for the child. Even if the substance abuse is not yet formally documented substantiating evidence indicating a high possibility that a parent is abusing a substance can be used to demonstrate that the parent abusing a substance is not fit for primary custodial rights or should be monitored during visitation.

11) Any history of physical abuse, sexual abuse, or neglect of children by either parent can also lead to limitations of custody or visitation. In most situations like this then the child will be placed with the parent that would abstain from such actions. If both parents are implicated in a history of physical abuse, sexual abuse, or neglect then the child will be placed in the custody of a familiar family member and or in the custody of foster parents. In these types of situations visitation will still occur, but will be monitored at a supervised visitation facility.

12) Criminal histories of either parent can also be taken into consideration. If a criminal history is believed to negatively impact the parent’s ability to provide proper care and upbringing to the child then the child will be placed in the custody of the other parent. If the criminal history has directly impacted the child then the visitation can be abstained or be made supervised. If the other parent is in jail for criminal activity then they may still receive visitation if ordered by the judge at the jail facility, but may lose or forfeit their custodial rights permanently or for the duration of their imprisonment.

If you believe that you need to modify custody or visitation or are in the process of establishing custody or visitation you should make all of the outlines of your parenting plan in compliance to the best interest of the child. For every item within the plan you should have a particular reason as to why it is necessary to have the plan organized this way, demonstrate how it is in the best interest of the child, and provide evidence as to why the arrangements should be made this way.

This is especially true for issues that you know will be contested in court by the other parent. A parenting plan may not be necessary in all situations, as children in the state of Georgia can choose their custodial parent at the age of 14 and may demonstrate a preference of which parent they wish to be their custodial parent at the age of 11. It is a good idea to consult with an attorney when formulating your parenting plan as unique circumstances may require particular outlines to ensure the child’s interest are accounted for.

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