What about the children during divorce?
The welfare of children is of major concern to the court. Neither parent is automatically entitled to custody. The judge looks at the best interests of the child when determining custody and what will best promote the child's welfare and happiness. The judge considers many factors when deciding custody, including but not limited to:
- the love, affection, bonding and emotional ties existing between each parent and the child
- the child and his or her siblings, half siblings and step siblings and the residence of such other children; the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child
- each parent's knowledge and familiarity of the child and the child's needs
- the home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors
- each parent's involvement, or lack thereof, in the child's educational, social and extracurricular activities
- each parent's past performance and relative abilities for future performance of parenting responsibilities
What is Joint Custody?
Joint custody means that both parents have the right to make decisions affecting the children and the right to have the children live with them. Obviously this is vague. Thus with respect to decision making, the court (or the parties if they can reach an agreement) will either award sole legal custody to one side so that if the parties do not concur about a child related decision, one parent can make the decision, or, the court may award joint legal custody, but designate one party to make the final decision on some or all of the decisions (education, medical, religious, extra curricular and so on). With respect to physical custody, there must be more specificity than just "joint" or "sole" custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.
What is Legal Custody?
Please review the answer to the FAQ about Joint Custody. Legal custody is the term used for the parent who is authorized to make the decisions regarding the child's welfare (education, medical, religious, extra curricular and so on). Usually there is a requirement that the parties try to cooperate to reach mutual decisions, but if this is unsuccessful, the legal custodian makes the decisions. It is often helpful to designate both parents as joint legal custodians so that physicians, school administrators and the like will have no reason to withhold copies of the children's records from either party.
What is Physical Custody?
Please review the answer to the FAQ about Joint Custody. Physical custody is the term used for the parent with whom the child(ren) are to live with the majority of the time. Regardless of whether a parent is awarded sole or joint physical custody, a schedule of dates and times for the child(ren) to be with each parent should be prepared and made a party of any custody order. As mentioned in the earlier FAQ, there must be more specificity than just "joint" or "sole" custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.
How does the Court decide custody?
In an initial custody proceeding (such as a divorce, or legitimation case), the court must look at what is in the best interest of the children. Once the Court has awarded custody, it can only be changed if there is a change of conditions (which has a legal definition spelled out in various cases).
What is a parenting plan?
Effective Jan. 1, 2008, the law in Georgia requires all persons divorcing with children to have a parenting plan. A parenting plan, also sometimes known as a parenting schedule, is a proposal submitted to the court by each parent that outlines which days each parent will have with his/her child. In all cases in which the custody of any child is at issue between the parents, each parent will prepare a parenting plan or the parties may jointly submit a parenting plan. It will then be up to the judge to decide where the child goes and for how long. The final decree in any legal action involving the custody of a child must include a parenting plan.
How does a parenting plan/schedule work?
There are many ways to arrange a child visitation schedule. If one parent has primary physical custody, the other parent may get the child every other weekend, every other holiday, and a few weeks during the summer.
What should I include in the parenting plan?
A parenting plan should always include:
- a clause where you show that you want to maintain and enhance a close and continuing parent-child relationship in the child's life and that this plan will be in the child's best interest
- a recognition that the plan can be modified as the child becomes older
- that the parent with physical custody will make day-to-day decisions for the child
- that both parents will have access to all of the child's records and information
- the days and times when a child will be in each parent's physical care
- how holidays, birthdays, vacations, school breaks, and other special occasions will be spent
- transportation arrangements
- whether supervision will be needed for any parenting time
- what education and religious upbringing the child will have
- what, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child
What if my spouse and I cannot agree on a parenting plan?
If you and your spouse cannot reach agreement on a permanent parenting plan, then each of you should file and serve a proposed parenting plan on or before the date set by the judge. It will then be up to the judge to decide which plan is in the best interests of the child.
May a child choose where he or she wants to live?
A child more than 14 years of age may choose which parent will have custody upon consent of the court. The child's choice shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The court considers it important for a child to maintain relationships with both parents; therefore, parenting time rights are awarded to the parent who does not have legal custody of the child.
How often can a 14 year old change their mind?
After January 1, 2008, such an election can only be made once every two years.
Can I seek a modification of custody requesting that all four of my children live with me based on my fourteen (14) year old (oldest) child's election?
With respect to the younger siblings, if they also desire to live with you, your older child's election in addition to the younger children's desires may provide the basis for a change of custody of all three (4) children. Each case is fact specific, and it will depend on the details of your situation.
My eleven (11) year old daughter has told me that she wants to live with me instead of her mother. Is her desire sufficient to change custody to me?
Her desire alone is probably not sufficient to change custody. While Georgia courts are authorized to consider the desires of a child between the ages of 11 and 13, in order to authorize a change of custody, the party who brings the action must show that (1) there has been a material change of condition substantially affecting the interest and welfare of the child and (2) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. The desire of an 11-year-old child standing alone would probably not be enough.
What is the Parenting Seminar?
Under Georgia law, both parties in a divorce are required to attend a parenting seminar in Georgia if the parties have children under the age of 18 due to the volatile nature of divorce and the impact it has on children. The parties are not required to attend the seminar together - they can take it at separate locations and on different dates. Even though the content of the parenting seminar is basically the same throughout the state, each county manages its own parenting seminar program. Generally, the topics addressed are how to reduce stress for children during a divorce, visitation recommendations, financial obligations, conflict management, changing parental roles during a divorce, stress indicators for children, and the needs and age appropriate expectations of children going through a divorce.
You can find more information for parenting seminars in Metropolitan Atlanta counties at:
- Cobb County
- DeKalb County
- Gwinnett County
- Fulton County
- Cherokee and Forsyth Counties
- Douglas, Haralson, Paulding and Polk Counties
Please note that there are only a limited number of seminars offered each month so it is important to review the schedule and try to attend the next available seminar. If you cannot attend the parenting seminar for the county in which your divorce is filed, most counties allow you to take the seminar in any other county in the State of Georgia to receive credit.
At the end of the seminar, you will receive a certificate of completion. The advantage of attending the seminar in the county in which your divorce is filed is that in most counties the Office of Dispute Resolution will automatically file the certificate of completion with the Clerk’s office for you. If you attend a parenting seminar in a different county, you are responsible for filing the original parenting seminar certificate with the Court.
In addition, if your spouse resides out of the state of Georgia, the judge still requires him or her to attend a parenting seminar. Parenting seminars are offered in the majority of states throughout the United States and your spouse will need to find a location convenient to him or her. For instance, Transparenting Seminars offer seminars throughout the United States.
Can grandparents be awarded custody or visitation rights?
Yes, but the legal burden is much higher for grandparents which means it is harder for grandparents to achieve custody or visitation rights than parents. If either or both parents are fit, grandparents will likely not be awarded custody and may have a hard time achieving visitation rights.