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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.
Few know this, but Georgia allows 13 grounds for divorce, one of which is “irretrievably broken,” which is also referred to as a “no fault” ground, while the rest are all considered as “fault” grounds. If you have filed or been served divorce papers in Georgia, chances are you are contemplating the alimony payments which will be included in your divorce negotiations.
Whether or not alimony is a friend or foe in a divorce will depend on where you stand. But, no matter where that may be, the most important thing of all is for both parties to know exactly what’s in store for them while they make their way through the divorce process.
Overview of Alimony in Georgia
Alimony is the financial support which is paid by one spouse to the other. Generally, when alimony is ordered or agreed upon, the higher earning spouse makes periodic (usually monthly) payments to the lower earning spouse. The payments from the “monied” spouse to the “non-monied spouse” can occur both during and after the divorce.
In order to obtain an award of alimony, a recipient spouse must generally prove that they truly need the financial support from their partner and show that their spouse can pay a specific amount as alimony. When determining the appropriate amount of spousal support, the court will take other factors into consideration too, such as:
The spouse’ standard of living
The length of marriage
The financial resources and earning capacity of each spouse
The age and physical wellness of each spouse
How long it will take the supported spouse to get back on their feet if they are currently unemployed
The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party
The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties
Such other relevant factors as the court deems equitable and proper
See O.C.G.A. 19-6-5 for the specific alimony Georgia Statute on point.
Kinds of Alimony Available
In Georgia, temporary alimony may be awarded by a judge while the proceedings of the divorce are underway. This type of alimony is called “Pendente Lite” alimony, which basically means pending. After the divorce is final, the judge in Georgia can either order a permanent or temporary alimony. While this usually means that the judge will order a spouse to pay a specific amount in a monthly or bi-weekly basis, occasionally the court could order a spouse to make the payment in a lump sum. Contrary to popular belief, there are many types of alimony, which include:
Temporary alimony usually involves getting financial support for a specific period of time—as mentioned earlier, it is usually while a divorce is pending. It is important to note that being awarded a temporary alimony doesn’t necessarily mean you will be awarded with permanent alimony.
This is a less traditional setup which involves a spouse having to pay for direct expenses such as making car loan payments or the mortgage.
There also exist alimony arrangements which involve multiple payments being made by a spouse. This could also include the spouse having to make either lump sum payments or periodic payments, or a combination of both.
Negotiating alimony is always tricky, which is why it is wise to hire an experienced and professional lawyer to handle the negotiations. Hiring an attorney will help answer some of the pressing questions, such as the amount of support you should consider for the alimony along with the duration.
Evaluating The Resources of Your Spouse
Whether you will be at the receiving end, or the one who has to make the alimony payments, you will need the right information in order to negotiate more effectively. This means that financial disclosures by both parties may be part of the process. For the recipient, it is important to find out exactly what resources their spouse has, while for the one who has to make the payments, it will give them a better idea of their ability to pay the alimony.
However, more information may not be required in the case of one partner being responsible for all the expenses during the marriage, or in the case of one being certain about the financial resources of their partner. If this is not the case, then you will have to make sure that the following information is included in the forms that will be filled out during the divorce. The following is the information which may be required:
The separate assets of your spouse. If your spouse has separate assets, you are entitled to know what they are and how much they are worth.
Income and expenses. You will want to have a detailed report of your spouse’s monthly income and expenses. If the expense report shows that your spouse spends $800 dollars on eating out every month, and all you can afford are TV dinners, then you will definitely want to point that out.
Overtime, bonuses, and benefits. Some other important factors which should be included in the evaluation of income are things like bonuses, overtime, deferred compensation, fringe benefits, or any other benefits that your spouse receives. You should also pay attention to other things, such as stock options, unused vacation pay, company-paid vehicles, and health insurance. Such information will help both parties get to an agreeable solution.
Evaluating Your Needs
Needless to say, you will have to evaluate your needs, as well. This will be the obvious thing to do since you will also be required to prepare an expense and monthly income disclosure. This will allow you to determine how much support you need.
If you are the receiving spouse, another factor you should definitely have to consider is the fact that nothing is getting cheaper, and the prices of everyday items are going up day by day. So, if you’re on the receiving end of the support, you might want to include a provision for increasing that amount each year, to adjust for the increases in the cost of living. The cost of living adjustment is also referred to as COLA. You can then tie in the increases either to the local or the national COLA index that is available online, to get a specific percentage, or you could assume the annual increase.
Modifications and Tax Effects
The court can potentially readjust the alimony payment amount if either spouse is able to prove to the court that there has been a significant change in the circumstances which led to the order—if the paying spouse has involuntarily lost their job or if the recipient has gotten one, for instance. Generally, alimony will terminate automatically when the recipient remarries or a party dies. The court can also sometimes terminate or modify the alimony if it is found that the recipient now has a live-in relationship with someone they’re romantically involved with. This is also referred to as a meretricious relationship.
It is possible that periodic alimony payments are tax deductible by the payer and taxable to the recipient. This situation can, at times, be taken advantage of, the couple having their alimony payments structured in a way that creates the best tax scenario. It is also important to note that almost all lump sum payments, when it comes to alimony, are treated as property distributions by the IRS, regardless of whether the court or either of the spouses calls the payments alimony. These payments will not be deductible or taxable for either of the spouses. When dealing with structuring alimony, it is prudent to consult with a tax professional.
Adultery in Divorce (In Georgia)
Adultery in Georgia is defined as the act of one spouse having sexual relations with another person who isn’t their spouse, while being in the bond of marriage. In order to prove the adultery of your spouse, one will need their spouse’s testimony, or any evidence, such as videos, photographs, phone records, or witness accounts, including the findings of a private investigator. All of these are helpful when trying to prove adultery.
So, how does adultery impact alimony in Georgia? Well, whenever adultery is the cause for a divorce in Georgia, the spouse who has been unfaithful could be barred from receiving any alimony. But, in the event that a person has forgiven their spouse (condoned the adultery), then such a bar to alimony might not be the case at all.
Remarriage and Cohabitation
In cases where one spouse is in a much better financial position than the other, the court may order the wealthier spouse to provide support for their partner. But the obligation of the paying spouse ends when the supported spouse remarries. In Georgia, the paying spouse is not obligated to get a separate court order to end the payments. All he or she has to do is simply end the payments on the day their spouse gets remarried. That being said, the paying spouse will still have to make the whole alimony payment right up until the day their spouse remarries.
Termination or Modification of Alimony in Georgia
It is possible for either of the spouse to terminate or modify the alimony by filing a motion asking the court to end or modify the alimony. This can be done when a receiving spouse ends up earning more than the paying spouse. And, in some cases, the court can also modify the amount of alimony for a supported spouse whose financial condition has worsened.
In order to modify or terminate the alimony, one has to file a motion in the superior court clerk’s office. They will then receive a date in which they will have to appear in court and provide the evidence to the judge to either terminate or modify the alimony. But, if you and your spouse have come to an agreement to modify or terminate an alimony agreement, there will be no need to attend a hearing.
While both spouses usually work outside of the home, the alimony law has been put in place to ensure the economic well being of those spouses who do not have the financial means of making ends meet during or after a divorce.
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.
Thumbtack.com recently recognized Naggiar & Sarif LLC as one of the best law firms in Atlanta, Georgia. We are honored that they would take it even a step further, and feature our divorce attorneys and law firm in their law firm “Spotlight” section as one of the top family law and divorce law firms in Atlanta.
Our “Spotlight” as one of the top law firms in Atlanta is located at this link. Note, Naggiar & Sarif is featured and recognized as not only one of the best divorce and family law firms in Atlanta, but our divorce and family law attorneys are spotlighted as among the best out of ALL law firms in Atlanta.
This recognition is extremely humbling. Thank you Thumbtack!
Thumbtack is an excellent resource for people who are searching for quotes from experienced professionals.
The family law attorneys at Naggiar & Sarif are skilled and experienced leaders in divorce and family law who will help you navigate what is likely a very difficult time in your life. Our attorneys have received many recognitions and awards over the years, but the acclaim and appreciation of our clients is what drives us. The achievement of our client's goals are our paramount concern.
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