Divorce/Custody

In Georgia there are two types of child custody:

PHYSICAL CUSTODY
Is about where and with which parent a child will primarily reside.

Physical Custody

In all cases divorce cases where custody of a child is at issue Georgia law gives no preference in custody of the child to the father or the mother. Further, Georgia law also gives no presumption in favor of any particular form of custody, legal or physical, in favor of either parent. This means neither parent shall have an advantage over the other when seeking custody and the court shall have no preference to a particular type of custody. There are four types of physical custody arrangements:

1. Primary Custody is where one parent has the child the majority of the time.

2. Joint Custody is where the parties split parenting time in approximately equal portions.

3. Sole Custody is a situation where one parent has all, or nearly all, of the time with the child.

4. Split Custody is a situation where parties have multiple children and one child spends the majority of his/her time with one parent and the other child(ren) spends the majority of time with the other parent.

Once a physical custody arrangement has been agreed upon by the parties or ordered by the court, then the configuration of the actual parenting time or visitation schedule must be established. The Court is required to put the custody type and visitation configuration into a parenting plan which states each parents’ specific custody rights and parenting time.

Legal Custody

The court may, and usually does, award joint legal custody to both parties. Joint legal custody means the authority to make decisions on significant issues regarding a child such as education, health care, and religious upbringing.

Joint legal custody allows both parents to have equal rights and responsibilities in making major decisions regarding their children which, in turn, provides both parents the opportunity to remain involved in their child’s upbringing. Having joint legal custody typically requires parties to have good faith discussions regarding major decisions affecting a child’s life. In the event, after discussions, that parents cannot agree how to resolve a major decision, one parent must have tie-breaker or final decision-making authority. The court is required to designate one party as the final decision maker for major decisions concerning the child in the event of joint legal custody. Typically a final decision maker will need to be designated as a tie-breaker in the following areas:

• Health and non emergency medical

• Education

• Extracurricular activities

• Religious Upbringing

Factors Considered in Determining Custody

When physical and legal custody are contested, the court has a number of factors to consider in making an award of custody. The factors a court considers are the best interests of the child factors. The court can consider any evidence it believes is relevant to the issue of custody, but it is the duty of the judge to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his or her award accordingly.

Modification of Custody or Visitation

Often times, parents get divorced when children are young. As children get older the situation may change which may warrant a change or modification of the custody and visitation arrangement.

To modify a previous custody order or parenting plan, a party must show that there has been a material change of conditions substantially affecting the welfare of the child since the last custody award. If the court finds that there has been such a change, then the court should base its modification order on the child's best interests. The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child's welfare as well as changes which adversely affect the child.

There is no specific list that explains what is a “material change of conditions” but this issue is often litigated in court such that the appellate decisions in Georgia give us some idea of what evidence may or may not warrant a change in custody. It is important to consult with an attorney about whether the issues in your case may warrant a modification of custody.

Georgia courts have determined that some situations are insufficient to be a material change of circumstance. Typically, courts have found that the remarriage and establishment of a home by one parent, change in employment status, engagement to marry, improvement in health of noncustodial parent is not a material change of conditions. However, if there is other evidence in addition one of these factors, then it may be important to pursue a modification of custody. Consult an attorney to discuss your case.