In any family law case involving children, child custody must be determined. Under Georgia Law, there are two types of custody: Legal and/or Physical.
What does Legal Custody Mean?
If a parent has legal custody of the child, then they can have access to any of the child’s records, such as healthcare and school records. A legal custodian also has the right to be a part of important life decisions concerning the child, for example medical, religious, educational, and extracurricular choices.
One or both parents can be the legal custodian of the child. Important decisions can be assigned to one parent, both parents, or certain decisions can be assigned to a particular parent.
What does Physical Custody Mean?
Physical Custody indicates where the child will be living. There are a couple ways physical custody can be divided:
- One parent can be the sole physical custodian – The other parent would be granted scheduled visitation or “parenting time.”
- Both parents can share physical custody – this means that the child will reside with each parent some percentage of the time.
Joint vs. Sole Custody
Within each of the categories of custody, parents can either have joint or sole custody.
Joint legal custody means that both parents get to take part in decision-making regarding the child. Sole legal custody means that only one parent gets to make those decisions.
Joint physical custody means that parents will share their time with the child. Sole physical custody means that one parent is going to have most or all of the physical time with the child. Sometimes you might hear the terms “primary physical custody” and “secondary physical custody.” Those terms don’t have any real legal significance. What’s important is to have a detailed parenting plan that lays out who will be parenting the child when and who will be making decisions.
Determining Child Custody in Georgia
According to Georgia Law, neither parent (the mother or father) has a presumed right to the custody of the child. Judges do not automatically have a preference in granting the mother or the father custody of the child. A judge can grant sole custody, joint custody joint legal custody or joint physical custody as appropriate.
A judge in all custody decisions is going to determine what is in the “best interest of the child and what will best promote the child’s welfare and happiness.”
O.C.G.A. § 19-9-3 explains the factors that a judge will consider in making their decision:
- The love, affection, bonding, and emotional ties existing between each parent and the child;
- The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
- The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
- Each parent’s knowledge and familiarity of the child and the child’s needs;
- The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
- The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
- 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 stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
- The mental and physical health of each parent;
- Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
- Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
- The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
- Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
- The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
- Any recommendation by a court appointed custody evaluator or guardian ad litem;
- Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
- Any evidence of substance abuse by either parent.
What if there has been a history of family violence?
If there is a history of family violence, the judge will take that into consideration when determining custody. When there is a history of family violence, the judge must consider the safety and well-being of the child and of the parent who is the victim of family violence and the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person.
The judge is not allowed to refuse to consider relevant or otherwise admissible evidence of acts of family violence just because there hasn’t been a previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time
Can my child choose which parent they want to live with?
If your child is 11, 12, or 13 years old, the judge will consider the child’s wishes, but the judge still has complete discretion. The child’s wishes do not control the custody outcome.
The parental selection of a child 11, 12, or 13 years old is not considered “a material change of condition or circumstance” in order to seek a modification of child custody.
If your child is 14 years and older, the child does have the right to choose the parent he or she wants to live with. The parent the child chooses will be the custodial parent unless the court finds that the chosen parent is not in the best interests of the child.
The parental selection of a child who is 14 years and older can, in and of itself, be considered “a material change of condition or circumstance” when seeking a modification of child custody.
Our Attorneys Can Help
While parties might be able to work out a settlement agreement that lays out a workable custody agreement and parenting plan, getting an attorney’s advice can help you determine what should be included to foresee and prevent common problems. If you want us to draft or review a Settlement Agreement or Parenting Plan, please contact us here.