What to expect in a Georgia divorce when child custody is at issue

Georgia law requires that custody arrangements for children after divorce be in their best interests.

Divorce is stressful, especially with children. A divorcing parent worries about custody: where a child will live, how much each parent will see the child and how decisions will be made for the child.

Types of custody

In legal terms, these issues are known as physical custody, visitation or parenting time, and legal custody, respectively. In Georgia custody law, the overarching concern is the child's best interests.

Physical custody means which parent has physical control of the child. Legal custody means who has the authority to make life decisions for the child on issues like religion, health care, activities, education and so on.

Both kinds of custody can be joint or sole. If legal custody is joint, the parenting plan must describe how the parents will resolve disagreements in decision making.

Parenting plans

A parenting plan lays out the custody-arrangement details, including any visitation schedule of the parent with whom the child does not have his or her primary residence.

Compared to those of other states, the Georgia parenting-plan statute is highly detailed, including specific components of and procedures for developing the plan, although certain provisions may be varied by court order or party agreement. Basically, the plan should decide matters of physical and legal custody, including parenting time and family-event scheduling.

Every final custody order must include a permanent judge-approved parenting plan. If parents agree on a plan, they can submit it jointly to the court for approval; otherwise each must submit a proposal.

Best interests

Georgia joins its sister states in using the best-interest-of-the-child standard for custody matters. Georgia law says that a judge must exercise this discretion solely based on the child's best interest and "what will best promote the child's welfare and happiness ..."

Usually, parties try to negotiate a marital settlement agreement that includes custody issues through their respective family law attorneys for submission to the divorce court. The judge can disapprove it if he or she finds it not in the child's best interests.

Custody issues not resolved by agreement will be decided by the judge (not jury) in the divorce trial. The judge must consider all factors relevant to the child's best interests and the statute lists examples, including:

  • Parent-child relationships
  • Sibling relationships
  • Parental capacity
  • Parental familiarity with the child's needs and ability to meet them
  • Parents' home environments, especially as concerns "nurturance and safety" over "superficial or material factors"
  • Continuity
  • Parental stability and health
  • Parental involvement in the child's education, relationships and activities
  • Family violence, child abuse and criminal convictions
  • And several more

To help with a custody decision, the judge may order a family psychological evaluation or an independent medical evaluation. The judge may also order investigation into abuse or neglect allegations.

Georgia law has a unique provision for older children. If the child is 14 or older, he or she can decide with which parent to live, which is presumptive unless the judge finds it not in the child's best interest. For kids 11 through 13, the judge is to consider the child's "desires and educational needs," but they are not controlling in the judge's final custody decision.

This only introduces Georgia custody law, which is complex. Special provisions for military families, international and out-of-state matters, and cases involving domestic violence are not covered here.

Legal counsel can be crucially important in custody matters. With four Atlanta-area offices and one in Savannah, the Georgia family lawyers at The Manely Firm, P.C., represent clients in divorce and related matters.

Keywords: Georgia, child custody, best interest, children, divorce, parent, physical custody, visitation, parenting time, legal custody, joint, sole, parenting plan, discretion, judge, agreement, factor, relevant, statute

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