Our law firm represents both high profile clients and people from all walks of life in their divorce and family law matters. This article focuses on the athlete, celebrity, and other high profile client’s our attorneys represent. You can see the article here.
Initial custody and modifications of custody cases can be complex. The relevant statute in Georgia when dealing with custody or visitation issues is OCGA 19-9-3. Experienced divorce and custody lawyers should be familiar with this statute and the related case law. The statute since 2010 is as follows:
TITLE 19 – DOMESTIC RELATIONS
CHAPTER 9 – CHILD CUSTODY PROCEEDINGS
ARTICLE 1 – GENERAL PROVISIONS
§ 19-9-3 – Discretion of judge in custody disputes; right of child 14 years old or older to select custodial parent; consideration of child’s educational needs; review of visitation rights; grandparent visitation; policy; retention of jurisdiction; attorney’s fees; filing of domestic relations final disposition form
19-9-3. Discretion of judge in custody disputes; right of child 14 years old or older to select custodial parent; consideration of child’s educational needs; review of visitation rights; grandparent visitation; policy; retention of jurisdiction; attorney’s fees; filing of domestic relations final disposition form
(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:
(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) 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;
(C) 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;
(D) Each parent’s knowledge and familiarity of the child and the child’s needs;
(E) 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;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) 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;
(H) 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;
(I) The mental and physical health of each parent;
(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
(N) 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;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.
(4) In addition to other factors that a judge may consider in a proceeding in which the custody of a child or visitation or parenting time by a parent is at issue and in which the judge has made a finding of family violence:
(A) The judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
(B) The judge shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
(C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of custody determination; and
(D) The judge shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.
(5) 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. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.
(6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child’s desires shall not be controlling. The judge shall further have broad discretion as to how the child’s desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.
(7) The judge is authorized to order a psychological custody evaluation of the family or an independent medical evaluation. In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith.
(8) If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child’s education, health, extracurricular activities, religion, and any other important matter shall be decided. Such order shall be filed within 30 days of the final hearing in the custody case, unless extended by order of the judge with the agreement of the parties.
(b) In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child.
(c) In the event of any conflict between this Code section and any provision of Article 3 of this chapter, Article 3 shall apply.
(d) It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.
(e) Upon the filing of an action for a change of child custody, the judge may in his or her discretion change the terms of custody on a temporary basis pending final judgment on such issue. Any such award of temporary custody shall not constitute an adjudication of the rights of the parties.
(f) (1) In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.
(2) In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent’s visitation rights or parenting time.
(3) Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.
(g) Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney’s fees made pursuant to this subsection.
(h) In addition to filing requirements contained in Code Section 19-6-15, upon the conclusion of any proceeding under this article, the domestic relations final disposition form as set forth in Code Section 9-11-133 shall be filed.
Our law firm’s Atlanta based attorneys are frequently asked: “Do I need a prenuptial agreement?” or “How do I know if a prenup is right for me?” The purpose of this article is to answer these questions and more if you are considering a prenuptial agreement and you live in Georgia. Chances are that if you’re getting married, the idea of getting a prenuptial agreement has crossed your mind, even if you haven’t voiced it out loud to your future spouse. While it might not seem like the most romantic topic, considering whether a prenuptial agreement is right for you is nonetheless extremely important. The reality is that prenuptial agreements are not only for the rich and famous.
Whether or not you bring up the topic of a prenuptial agreement with your fiancé of fiancée, some of the fundamental principles regarding entering a prenuptial agreement should almost certainly be followed before you get married. Specifically, as many studies of shown, it is a good idea for future spouses to have an open and honest discussion about their finances and financial picture. And of course, one of the critical components to a proper prenuptial agreement is full and complete financial disclosure.
Many people are under the misconception that discussing prenuptial agreements means that their future spouse has little faith in the marriage. That is simply not the case. A prenuptial agreement can essentially be compared to an insurance policy – you hope you never have to use it, but if you do, you are thankful that it is there to protect you. It is no secret that divorces can be quite complicated and a prenuptial agreement can help alleviate some of the stress and actually de-complicate some of the issues typically encountered during a divorce.
As you may know, a prenuptial agreement is a contract entered by a couple before their marriage and such agreements are recognized as valid in Georgia. Generally, prenuptial agreements concern and address issues typically involved in divorce, such as property division, property rights, liabilities, debts, and alimony. A well-written prenuptial agreement should address separate and joint property. Although prenuptial agreements may cover a wide range of issues, there are some matters that cannot be addressed. Generally, prenuptial agreements do not address child custody and child support because the best interest of the child is determined at the time of divorce.
How do you know if a prenuptial agreement is right for you? You should consider having a prenuptial agreement drafted if you or your future spouse answers “yes” to any of the following questions:
– Do either of you have professional licenses or degrees?
– Do either of you have significant family wealth or expected future inheritance?
– Do either of you currently earn more than $100,000.00 per year?
– Is there a disparate difference between your income / assets and those of your future spouse?
– Do either of you consider yourself high net worth individuals?
– Do either of you have specific property you want to protect?
– Does your spouse have significant debt or student loans and you do not?
– Do either of you have significant stock holdings, stock options, profit sharing, bonds, other investments, or cash?
– Do you have any children and/or grandchildren from a previous marriage?
– Do either of you own any real estate (including investment / rental property)?
– Are either of you a business owner or have a family owned business?
– Do either of you have retirement benefits?
– Do you have loved ones who need to be taken care of such as elderly parents?
– Do you want your estate (or even just part of it) to go to your children (and/or children of a former marriage) instead of your spouse?
While this list is certainly not all-inclusive, it may help you decide whether or not a prenuptial agreement is appropriate for you. If you are considering entering into a prenuptial agreement, I strongly encourage you to schedule a confidential consultation with an attorney who specializes and has experience in this area of law and with drafting and/or negotiating prenuptial agreements.
The attorneys at the Georgia law firm of Naggiar & Sarif are experienced lawyers who can help answer your questions regarding prenuptial agreements (and postnuptial agreements which are very similar to prenuptial agreements except the parties are already married).
Please feel free to contact us to schedule a confidential consultation if you are interested in learning more about prenuptial agreements or if you are considering entering into one in Georgia.
Our firm’s divorce and family law attorneys, Andrea Seliski and David Sarif, are honored that an article they wrote was featured in Family Lawyer Magazine. The article, titled “Avoiding Appellate Landmines in the Post-Judgement World” asserts that “attorneys should be familiar with the post-judgement landscape prior to trial in order to avoid potentially irreparable harm to client’s rights – both on appeal and in the trial court.”
If you have a divorce or family law appeals issue in Georgia, contact our law firm to see how we can help.
How does a person calculate gross income for child support in military child support or divorce cases?
In any standard non- military divorce case and/or child support case, the attorney drafts a child support worksheet in accordance with the Georgia child support guidelines. The statutory authority for this action is delineated in O.C.G.A. 19-6-15.
Specifically, O.C.G.A. 19-6-15(f) deals with gross income as it pertains to the parties. The gross income of the parents is the primary factor in calculating child support. While this can be complex to determine, most family law and divorce lawyers have experience working with the state approved worksheets.
Where a significant number of attorneys lack experience is the calculations involved with determining gross income for military personnel. The Georgia statute specifically addresses this issue in section (f)(1)(E) of O.C.G.A 19-6-15:
(E) Military compensation and allowances. Income for a parent who is an active duty member of the regular or reserve component of the United States armed forces, the United States Coast Guard, the merchant marine of the United States, the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, the National Guard, or the Air National Guard shall include:
(i) Base pay;
(ii) Drill pay;
(iii) Basic allowance for subsistence, whether paid directly to the parent or received in-kind; and
(iv) Basic allowance for housing, whether paid directly to the parent or received in-kind, determined at the parent’s pay grade at the without dependent rate, but shall include only so much of the allowance that is not attributable to area variable housing costs.
Except as determined by the court or jury, special pay or incentive pay, allowances for clothing or family separation, and reimbursed expenses related to the parent’s assignment to a high cost of living location shall not be considered income for the purpose of determining gross income.
Pay specific attention to (E)(iv) which discusses the basic allowance for housing (BAH) provided to service members. BAH is a monthly allowance given to service members to assist with off base housing costs. The amount paid by the government to the service member is determined in two ways. Rank of the service member and location of service members duty station.
Here is the rub: since service members rotate duty stations (some much more frequently than others) how is an attorney supposed to use this allowance to calculate child support if the amount theoretically can change a day after the judge signs the order?
I have to say that I love how the drafters of this statute addressed this issue. Paragraph (E)(iv) expressly addresses this concern: “Basic allowance for housing…shall include only so much of the allowance that is not attributable to area variable housing costs”
No interpretation needed here. The statute guides the attorney to use only the portion of the housing allowance not attributable to variable hosing costs. For example, a soldier holding the rank of captain may draw $1,533.00 a month if assigned to the city of Atlanta. If he chooses to live in buckhead or midtown or a suburb is irrelevant. If he is assigned to Atlanta he will receive the rate for Atlanta. Logic would dictate that the Atlanta attorney representing the soldier would draft a worksheet that includes the $1,533.00 as income. Now imagine, what would happen if that soldier gets transferred to Fort Polk, Louisiana 90 days after the order is signed and his allowance is cut to $1413.00?
The statute accounts for this and allows the attorney to use a non-locality (BAH) rate which is sometimes referred to as (BAH-II). The BAH-II chart which can be found here: http://www.defensetravel.dod.mil/Docs/perdiem/browse/Allowances/Non-Locality_BAH/2014-Non-Locality-BAH-Rates.pdf . This chart provides the housing rate according to rank with no attribution to locality. The uniformity of this chart simplifies the calculation and helps the parties reach a fair result without requiring the parties to return to court to modify child support every time a service member moves.
So in our example above, the correct BAH amount would be $1020.60 (non locality rate according to BAH –II chart) for a service member with the rank of Captain. Another important point is to use the calculation without dependents. Unless the service member represented has primary custody of the children, the government will only pay the without dependent rate.
I cannot count the amount of times I have corrected inaccurate worksheets based on this issue. Luckily, the statute is clear and the concept makes rational sense so most (most, not all) opposing counsel will not argue this point once they read the statute and reviews the (BAH-II) chart.
Calculating gross income for military service members in child support cases
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