GEORGIA Custody And Visitation Guidelines
The Georgia child custody laws and courts differ slightly from other states in some aspects, making it important to prepare before court. Georgia child custody laws are focused on providing the child with a custody agreement that will most benefit their health and well-being.
Types of Custody
De facto (means in fact) custody refers to who actually has custody of the child at this time. This does not carry the weight of the court behind it. In order to formalize custody before you begin litigation, one should file a motion for Pendente Lite (meaning pending litigation) or temporary custody. Temporary custody is subject to review based on the “best interests” of the child standard. It is not an “initial” award of custody because it is understood to be temporary pending a full hearing.
Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child’s welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child’s everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.
Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child.
Joint Custody is actually broken down into three categories. Joint Legal Custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence. In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent. Additionally, the parties can make a special joint custody agreement that is any combination of a Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.
In order to assure the best interests of the child the court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody that is also very relevant to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child’s welfare.
Best Interests of Child
Georgia family courts typically look at the following factors to help them determine the custody agreement based on the best interests of the child:
- · The wishes of the child involved if they are typically between 11 and 14 years of age.
- · The nature of the relationship that the child has with either co-parent.
- · The schedule of each co-parent. A parent may have a busy job schedule or other obligations leaving little flexibility to care for a child.
- · The financial situation of each co-parent. If either co-parent is not financially capable of caring for a child during that time it may affect the court’s decisions.
- · The current physical and mental health of both of the co-parents.
- · The depth of involvement that each co-parent has in their child’s life. This could include involvement in school activities, the child’s sporting events, and other extra-curricular activities.
- · Any illegal substance abuse or alcohol abuse of either co-parent.
- · The willingness of each co-parent to facilitate and encourage a healthy and lasting relationship between the child and the other co-parent.
In Georgia, the law does not favor either the mother or father. Rather, they look to the relationship of each parent with the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents. Georgia child custody laws and courts consider all of these factors when determining the final outcome of the child custody arrangement.
When the father and mother of a child are married, paternity is automatically established when the child is born.
If the parents are unmarried, the child is the child of the mother. When the parents of a child aren’t married, paternity has to be established before the father’s rights and obligations take effect. Unwed parents are given the opportunity to sign a Voluntary Paternity Acknowledgment (PA) form at or near the time of a child’s birth.
In order for the father to assert rights to the child (including rights to custody or visitation), paternity must be admitted or established in court. Paternity can be established by: judicial determination of paternity; father’s acknowledgment of paternity in writing; father’s open and notorious recognition of the child as his own; or by marrying the mother and then acknowledging himself as the father, either in writing or orally. In order for a father to bring suit to establish paternity by judicial determination, he should file an action for “filiation”; but, this is not required to seek custody if any of the other three methods has established paternity. Once paternity is established, neither party will be given a preference based solely on the gender. Establishing paternity for a child in Georgia may be done in one of the following ways:
1. The child’s parents are legally married to each other
at the time of the child’s birth;
2. Unwed parents sign a Voluntary Paternity Acknowledgment Form; or by
3. Court order (divorce decree, separation agreement,
or other judicial or administrative order).
Parenting Plans in Georgia
During the initial child custody hearings, Georgia courts require that the co-parents come to an agreement on a parenting plan and submit it to the court. A parenting plan will include:
- Recognition that a close and continuous relationship will be in the child’s best interest
- Recognition that a parent with physical custody of a child will make day-to-day decisions for the child when the child is with the parent
- How holidays, birthdays, and school vacations will be handled by both parents
- Allocation of decision-making to one or both parents with regard to the child’s education, health, extra-curricular activities, etc.
Parents who cannot agree on a parenting plan should present a proposed parenting plan to the court. If either parent does not submit a parenting plan, the judge may adopt the plan of the other parent, if it is deemed to be in the best interests of the child.
Visitation is the part of the court order that defines the conditions for the non-custodial parent to have contact with the child. Visitation is limited by legal custody being vested in the other parent. This means that your visitation does not give you the authority to conflict with the long range decisions and policies of the parent with legal custody.
Supervised visitation is when the parent is only allowed to visit with the child in the company of another person. This person is usually a friend or relative that the two parents agree will be allowed to act as a chaperon. Supervised visitation often calls for a restriction of visitation to a particular location and time.
Obviously a biological parent can be awarded visitation. Additionally, grandparents (even when the parents weren’t married or are not currently divorced) and step-parents may be awarded visitation rights in Georgia.
Jurisdiction is the imaginary fence that separates the subjects one court hears from another. There are two types of jurisdiction: personal and subject matter. The court must have both types of jurisdiction to hear a case. To have jurisdiction in Georgia the court will require one of the following:
Georgia is the home state of the child (lives in state, goes to school in state) and the parent has sufficient contact with the state (works, votes, lives, pays taxes in Georgia).
- Georgia was the child’s home state within the last six months and the parent filing for custody continues to live in Georgia and the child is absent from the state because another person took them out of Georgia claiming custody.
- The child and at least one of the parents have significant connection with Georgia (live, work, go to school here) and in Georgia there are more records and witnesses to give evidence of the child’s present or future care, protection, training and personal relationships.
- The child is physically present in Georgia and was abandoned or emergency protection is necessary (the child was threatened or subjected to abuse or neglect).
- No other state would have jurisdiction based on 1,2,3, or 4 above.
- Another state says Georgia has jurisdiction.
- Child was removed from Georgia and the Uniform Child Custody Jurisdiction Act does not apply and no other state has jurisdiction, then Georgia will have jurisdiction if:
- Georgia was where the married couple lived, paid taxes, voted, etc., but the parents are now currently separated or divorced or Georgia was where the marriage contract was last performed.
- One parent is a resident of Georgia and was a resident when the child was removed.
- The Court has personal jurisdiction over the parent who has removed the child.
Modification of Custody
When a parent seeks to have the custody order changed, it is his/her burden to show the court why it should be changed. The court follows the old notion of, “if it isn’t broke don’t fix it.” This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will adversely impact on the well being of the child. This is not as simple as it may seem. There has to have been a substantial change in circumstances and a showing that it is in the child’s best interests to modify custody. If the two homes are thought to be equal, then custody will stay as it is.
A child at least 16 years of age can also seek a change in custody on his/her own. However, it will be the minor’s burden to prove that a change of custody would be in his/her best interests at this time. The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction.
Registration of Out of State Orders
An out of state custody order can be registered in Georgia by taking a certified copy of the order to the local Superior Court. A certified copy will usually be signed and initialed by the clerk of court that issued the order, and will usually have some kind of stamp or raised seal on it. The clerk will give you a receipt that shows the order has been received.
Uniform Child Custody Jurisdiction Act
The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by Georgia, as well as the other 49 states. This act gives jurisdiction for custody cases to the location that is most closely associated with the child. Within Georgia, the Circuit Court has jurisdiction to hear child custody cases. That court has the power to override any agreement if they believe the agreement is not in the best interest of the child.
If the parties are having trouble reaching an agreement, mediation is an option. A mediator specializes in helping people reach an agreement that is fair and will last. The mediator’s role is not to take sides, but to bring the two sides together.
Georgia Considers the Effect of Custody on Military Personnel
In Title 19-9-3, Georgia considers many of the diverse effects of custody on military personnel and has set out structured guidelines for both parents and the Court. For more detailed information, please refer to the new article provided by About the Children entitled:
GEORGIA: CUSTODY EFFECTS ON MILITARY PERSONNEL.
GEORGIA RESOURCE LINE
Note: The foregoing information is provided as general child support law guidelines in the state of Georgia and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.
Submitted by Linda O’Marie, Paralegal
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