The role of the judge when determining custody in a case is to use their discretion to determine what is in the best interest of the child, and what will support the child’s welfare and happiness. A custody order transfers responsibility of care for a child to parents or someone else after a divorce or other family law case involving child custody. One important fact in custody cases is that there is no presumptive right as to which parent should have custody of the children from the onset of the case. There is also no presumptive favoritism granted to either parent as the type of custody they are to be granted as well. Also, there is no one single issue that will determine custody, judges are expected to look at numerous issues and determine what is in the best interest of the child based on the conclusion that they can derive from those issues. Finally, custody does not include child support.
In most cases involving custody, the parents are expected to submit a parenting plan, which can be agreed upon by both parties or each party can submit a separate one to the court. This document generally includes, an acknowledgement that a “close and continuing parent-child relationship and continuity in the child’s life will be in the child’s best interest,” another acknowledgement that the child’s needs will change as the child grows older and that the parent, or parents, will take this into account when raising the child. Additionally, a “recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent…”. Finally, a statement saying each parent will have access to all of the records and information pertaining to the child, which could include, but not limited to, education, health, and religious communications.
Courts may require additional information such as when or where the child is when each parent has custody of the child, how special occasions, such as holidays, vacations, etc., are to be spent with each parent, transportations agreements, and other details that are connected to the issue of custody. A parenting plan is very important, if one is not submitted, the judge may adopt the opposing party’s parenting plan as the only plan if this is determined to be in the best interest of the child.
Child Custody can be Divided into Two Parts: Legal and Physical
The difference between legal and physical custody
The party who is granted the legal custody of a child can make important decisions regarding the child’s care. This may involve decisions regarding, but not limited to, education, health care, extracurricular activities, and religious matters. If the court gives sole legal custody, one parent can make all decisions without asking another parent for permission. The party who has physical custody has the responsibility for the physical care of a child. Sole custody is when a person, who may or may not be a parent, has been granted permanent custody of a child by a court order. This person now has the exclusive ability to determine major decisions that concern the child, unless a court order says otherwise. If the court grants sole custody, the child lives with the parent over 50% of the time and another parent has the right to visit the child.
What is joint custody and sole custody?
Joint custody is defined by Georgia Law code section O.C.G.A. § 19-9-6 (4-6) as “joint legal custody, joint physical custody, or both joint legal custody and joint physical custody…
“Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, …”. “[T]he judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” These decisions are the same ones that are granted to one parent if that parent is granted sole legal custody.
“Joint physical custody” means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.”
If the court grants joint physical custody, the child lives an equal amount of time with each parent. If the court gives joint legal custody, both parents can make decisions that can affect the child’s life and upbringing. One must remember that joint legal custody and joint physical custody are not always granted together by the court.
Elements Considered by the Court in Determining Custody
- Child’s age
- Child’s health
- Emotional ties, love, and affection between the child and the parents
- The Emotional ties, love, and bonds between the child and their siblings, as well as the residence of the siblings
- The capacity and disposition of each parent to be able to take care of the child
- The parent’s knowledge of the child’s needs
- The capacity of the parent to provide for the child’s basic needs
- The home environment of each parent
- The child’s ties to home, community, and school
- The stability of the family unit for each individual parent
- History of family violence (if any)
- Each parent’s mental and physical health
- Each parent’s employment status and how that affect the child
- Parent’s past record when concerning their child
- The willingness of each parent to continue to foster parent-child relationship with each other
- Substance abuse
- Any recommendations from a court evaluator or guardian ad litem
When the child in question has reached the age of fourteen (14) they have the right to select which parent they wish to live with. This is can be completed by having an experienced divorce and family law attorneys draft what is commonly called an “Affidavit of Custody Election” which is signed by the child, notarized and filed with the court. This selection is presumptive, unless living with that parent is determined to not be in the child’s best interest.
The Georgia law that authorizes the minor child’s election is O.C.G.A. Section 19-9-3(a)(5) which provides: “In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.”
Child custody and visitation cases can be complicated, especially when parents can’t agree. Contact us now to understand how the law affects your rights. Our experienced divorce and family law attorneys at Coleman Legal Group, LLC can be reached at 770-609-1247.