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Child Physical Custody

When kids are part of the picture, divorce actions become exceedingly complicated.  Unless parents can agree on the post-divorce redefinition of their family, courts are charged with the daunting task of determining what parenting arrangement would best serve the child’s best interests.

Ideally, each child should be able to develop solid relationships with both parents.  In fact courts are actually required to at least consider a 50/50 parenting time in custody cases.  In the majority of cases, however, equal parenting time arrangements are found to be inappropriate due to several reasons.  Those reasons may be as innocent as the parties’ respective work schedules and proximity of their homes in relation to one another.  Other reasons are a bit more culpable, such as intentional alienation, subconscious estrangement, or just a general inability of the parents to put their differences aside well enough so as to have a healthy co-parenting relationship.

In situations where the parties are unable to agree, the judge will formalize a custody plan that the parents will be forced to follow after the final divorce decree is issued.  The judge will look at many different factors when making a decision about what is in the child’s best interests, including, but not limited to:

  • Ability to financially support the child (…although child support is meant to equalize disparities to a certain extent)
  • Ability to provide a comfortable home
  • The emotional bond between the parents’ and child
  • Parents’ physical and emotional health
  • Parents’ involvement in the child’s educational and extra-curricular activities
  • General stability and consistently for the child

When all other things are equal, the assigned judge will often use the parent’s respective ability and willingness to co-parent as the deciding factor of physical custody.  In other words, courts realize that children do better when BOTH parents are involved in their lives to the fullest extent possible.   If forced to choose, the judge will place the child in the primary custody of the parent who appears to be more likely to encourage the child to have a loving relationship with both of their parents.

In most cases, the judge will award some form of joint physical custody to the parties.  In joint physical custody arrangements, the child resides with both parents at any given time.  Joint custody does not necessarily mean that the custody is split 50/50. For instance, the child might live with one parent during the school week, then stay at the other parent’s home every other weekend.  Judges rarely award sole physical custody to one parent.  One parent would need to be virtually devoid of any appropriateness to have any contact with the child whatsoever before a court will award sole physical custody to either parent.

Pursuant to O.C.G.A. §19-9-3, there shall be no prima facia right to the custody of the child in the father or mother, no presumption in favor of any particular form of custody, nor in favor of either parent.   In other words, neither parent will be presumed to be in a superior position to have primary physical custody of the child.  Mothers and fathers are on equal footing until the totality of the circumstances are carefully considered.  At the conclusion of a custody trial, the judge will issue a final parenting plan that the judge believes would best serve the child.  Sometimes, that will mean placing the child in the primary custody of the mother.  Sometimes, the father.  In either event, the specifics of the plan will be designed to best accommodate the unique circumstances of the family.

The Manely Firm fully understands that children have a right to be placed in the best position possible post-divorce to flourish in every sense of the word, including, but not limited to, socially, academically, and emotionally.  In every custody case, we will tirelessly advocate for a parenting plan that will provide the child with every tool needed to grow into the happy and successful adults all parents dream for their children from the day they are born.