In many family law or divorce cases, custody and parenting time are the most intricate and contested issues. In some cases, the Court appoints a Guardian ad Litem to investigate and represent the best interests of the child or children (but note, not to represent the children themselves) or the Court may appoint a Custody Evaluator to assist the Court. Cases involving such experts are frequently dealt with by our attorneys and there are many moving parts to such cases that our law firm can assist you with.
Pursuant to Georgia law, both parents come before the court equally and there is no presumption in favor of one parent with respect to custody simply based upon who is the mother and who is the father.
Custody and its subparts have many labels and names. Some of these labels are not as important as others. But no mistake about it, some labels and/or wording make all the difference in the world and are of utmost importance. In other words, you want to get it right and have your agreement or final order reflect what is the true intention of the parties or the Court.
At a high level, custody can be broken into two primary categories; physical custody and legal custody. The first deals with scheduling and time with the minor child or children, and the latter revolves around decision making. There are four main categories that the Court will require you to address with respect to decision making. In no particular order, they are educational, extracurricular, religious, and medical decisions. In general, one parent can be the final decider on all decisions or the decisions can be divided.
Visitation is the more traditional term for the non-custodial parent’s time with the minor child or children. Today, however, Court’s and parties more often than not refer to this time as parenting time.
Per O.C.G.A. §19-9-1, Court’s requires that the parties submit a parenting plan which is something our attorneys are very familiar with preparing and presenting to the Court
While there are many relevant statutes addressing custody, perhaps the most important is O.C.G.A. § 19-9-3 (and its related case law). While there is a great deal of significant language in the statute, it clearly lays out the factors for which the Court must consider the bests interests of a child. It states:
O.C.G.A. § 19-9-3 (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.
Also, this statute is important because unlike its predecessor, this statute allows attorney’s fees to be awarded in custody cases whereas this was not the case under this statute prior to its adoption by the legislature. The statute even authorizes attorney’s fees to be awarded at a temporary hearing.
See OCGA § 19-9-3(g) which states, “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.”
Also, many cases involve multi-state or multi-county jurisdictional issues which may implicate the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or the Hague Convention. Our attorneys can help you with such situations.