The courts of Georgia are intimately invested in the general welfare of minor children, as they serve as the parens patriae of all children in this State. This means the courts look to what is in the best interest of the children and ensuring that a parent has the ability and proper concerns for raising a child. There is no longer a presumption that a mother, or a father, will automatically receive custody. The law now states that where both parents are fit, minor children should have frequent and continuing contact with both, and that courts should encourage both parents to work together to jointly raise and be a part of their children’s lives.
There are two major issues in the judge’s determination of custody – legal custody and physical custody. Legal custody is that part of custody which provides for the rights and responsibilities affecting the rearing of a child, focusing on major decisions concerning the children, including the health care, education, religion, and extra-curricular activities of the children. As a general rule, the parties share in these decisions-making processes, but ultimately one parent, or even a third party such as a doctor or counselor, must have final authority. Included in this consideration would be access to the child’s medical, school, and all records to which a parent would be entitled.
The other consideration in custody awards is the physical custody of the children, where the children will essentially call home. While there are mixed views, as expected, from different judges on the issue of equally dividing or splitting the time a child spends with the parents, the parents may agree between themselves as to joint custody which a trial judge will generally authorize when it is in the child’s best interest. When a parent does not share equal custody, he or she will be authorized certain parenting time with the child such as weekends, once a week time, holidays and vacation times, and other memorable events such as birthdays. In order to have the judge approve the arrangement, the parties must submit a written Parenting Plan which provides the details of the children’s times with each parent during the year.
Should the case actually go to a hearing, there are certain factors which the judge must consider:
O.C.G.A. § 19-9-3:
(a) (1) In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.
(2) The judge hearing the issue of custody shall make a determination of custody of a child and such matter shall not be decided by a jury. The judge may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child should be awarded. The duty of the judge in all such cases shall be to exercise discretion 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.
(3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
- The love, affection, bonding, and emotional ties existing between each parent and the child;
- The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
- The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
- Each parent's knowledge and familiarity of the child and the child's needs;
- The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
- The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
- The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
- The mental and physical health of each parent;
- Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
- Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
- The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
- Each parent's past performance and relative abilities for future performance of parenting responsibilities;
- 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;
- Any recommendation by a court appointed custody evaluator or guardian ad litem;
- Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
- Any evidence of substance abuse by either parent.
There are also provisions in this statute for dealing with issues of domestic violence and military deployment.
Custody can be sought in a divorce case where there are minor children, in juvenile court where a party’s parental rights may be terminated in dependency proceedings, or after the original action is finalized in which a parent may file a modification action in which it is alleged that circumstances have changed which materially affect the children.
In a direct custody action, the wishes of a child may be considered so that at age 14 the child may select the parent with which he or she desires to live, subject to the judge’s determination it is in the child’s best interest. At age 11 to 14, the judge still must consider the child’s wishes, but that selection is not determinative.
A third party guardian ad litem may be employed to investigate the circumstances of the home life and allegations of each parent and deliver a report to the judge making a recommendation where the child should be placed and what parenting time should be awarded to the non-custodial parent. A psychological evaluation may also be ordered to involve the parents and child, and witnesses may be interviewed. The psychologist will employ a series of psychological tests to gain insight about the mental health and circumstances of the parents and child. The psychologist will also issue a report and may testify in court as to his or her finding, but the judge has ultimate discretion in these cases, and is not required to follow either report.