Child custody will be a major issue if you are in the process of going through a divorce. Divorce proceedings can become overwhelming, especially when there are minor children involved, as a divorce can have a tremendous emotional impact on children. Similar to other states, Georgia has its own rules when it comes to making a custody determination. Georgia court’s focus on the “best interest” of the child. This article is written for educational purposes and it will highlight the basics of child custody. The main focus of the article will be on how child custody is determined. As always, it is generally advised to consult your local experienced family law attorney before determining what custody arrangement will be most suitable in your child’s case.
Basics of Child Custody in Georgia
In an event of a divorce, a custody order determines who has the legal right to keep the child. A child custody order transfers responsibility of care for a child to parents or someone in place of parents who keeps best interest of child in mind.
Child custody can be divided into two different parts:
1) Legal Custody
Under Georgia law, legal custody determines which parent has the authority to make major decisions on behalf of a child. The decisions pertain to areas such as: Medical treatment, Education, Religion, Extracurricular activities. Legal custody can further be divided into: Sole legal custody and joint legal custody.
- Under the Sole Legal custody, only one parent gets the primary authority to make the decisions concerning child’s major life areas.
- On contrary, under the Joint Legal custody, both parents equally get a say in the important areas pertaining to the child’s life.
2) 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. Under O.C.G.A. § 19-9-22(a), visitation is not the 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.
The joint custody can come in both legal and physical custody and it focuses on the responsibilities of each parent separately instead of both parents together. Unmarried parents who live separately have joined custody. Full joint custody allows both parents to make decisions together and have physical control of the child.
Determining Child Custody in Georgia Courts
In Georgia, custody is determined under the “Best Interest of Child” standard. Under O.C.G.A 19-9-3, the judge has the discretion to determine custody. If the child is 14 years or older, he has the right to select the custodial parent. Further, under O.C.G.A 19-9-3, if the custody of the child is issue between the parents, there is no “prima-facie” right for father or mother to claim the custody of the child. “Prima-facie” right is defined as legal presumption, which means on face of it at first sight. The Court should not favor one form of custody over another, nor should the Court favor either parent. Furthermore, during the custody determination hearing, the judge will have the sole discretion to make the decision, and Jury shall not hear the matter.
In determining the “best interest” of the child, the judge will take into consideration all the circumstances surrounding the case.
In determining what is likely to fall under the best interest of a child, the Court evaluates the standard under the following factors:
- Child’s age
- Child’s health
- Emotional ties between the child and parents
- The ability of each parent to care for the child
- The child’s ties to home, community, and school
- History of family violence (if any)
Sometimes, if custody harms the child, the court can give custody to somebody else because it is in the best interest of a child. This is called guardianship, where a person who is not the parent asks for custody.
Non-custodial parent cannot be denied right of visitation, if the non-custodial parent were never married to other parent, or because the non-custodial parent has a disability, or a different lifestyle.
Child Support Orders
When awarding the child custody, the Court also awards child support orders to the primary custodians. It is important to keep in mind the child custody and visitation isn’t the same as the child support order. Therefore, just because a parent cannot be stopped from visiting the child because he or she is not making the court ordered payments. On the contrary, a parent is still obligated to make the payments, even if the custodial parent is not allowing the non-custodial parents visitation rights. The Court in Beasley v. Lamb held that, “in an order changing child custody from one parent to another, the court can provide therein that the child support shall be payable to or by the person to whom the custody is awarded.”
Once the child support order is in effect, the Court has the discretion to modify the child support order, if the circumstances call for it. The Georgia courts are likely to modify the child support order if there has been substantial change in financial circumstances.
Going through a divorce is a roller-coaster ride, but it can be made less painful with the help of a professional. When minor children are involved, it is important to keep your child’s well being in mind, as well. A child demands affection of both parents, and nothing should come in between. Child custody determination can become complicated.
When child related matters are at stake, it is important to seek an experienced attorney who can assist you in your matter. Call us today at 770-609-1247 to speak with one of our experienced divorce and family law attorneys. You do not have to go through this alone, and we are here to help.