By Leah Zammit
•
10 Apr, 2024
There is nothing I do as a lawyer that is more difficult or heart wrenching than a custody fight. Custody battles are by far the most contentious aspect of divorce litigation and drain your emotions, your finances, and, often, what little respect your might have had left for your spouse. Your life becomes an open book as your parenting skills are judged by what seems like the whole world. There are very few of us that can maintain grace under that kind of pressure and scrutiny. My hope in this article is to educate you on the basics of custody in Georgia as information goes a long way to approaching a custody dispute. The term “custody” actually has two implications. In Georgia, there are two forms of custody: legal and physical. “Legal Custody” is the term used to identify decision making powers parents have over their children. Absent unusual circumstances, parents are usually awarded “joint legal custody,” as both parents have a right to be involved in the decisions that affect their children. What this means in practice is that parents have a duty to communicate and consult with one another on major issues affecting their children. The areas most notably focused on are decisions involving children’s non-emergency health care, their education, their religion, and their extracurricular activities. Although parents need to communicate and consult with one another before decisions are made, it is wise to have one parent as a “final decision maker” in the event that parents cannot agree. It used to be that the children’s primary physical custodian (which we will talk about in a minute) was the chosen final decision maker. This has changed somewhat in that courts often divide these decision-making powers so as to balance the parents’ influence and control. “Physical Custody” is the term given to the determination of where the children live. The “primary physical custodian” is a term often used to describe the parent who has the children for the majority of the time and the “secondary physical custodian” is the name used to identify the parent who visits with the children on a certain schedule. We now call such time “parenting time.” All divorcing couples with children are also required to present a “Parenting Plan” with their settlement agreement outlining down to the number of days the time each parent has “parenting time” with their children. The Parenting Plan also mandates certain idealistic, but very important, concepts. For example, neither party is permitted to disparage the other to or in front of the children. Neither party is permitted to utilize the children as a “go between” for adult communications (regarding child support for example), and each party is entitled to full information regarding a child’s school and medical records. While somewhat tedious, a parenting plan, if done correctly, will aid both parents and children post-divorce. The law has taken a lead role in trying to mandate grown-up behavior in divorcing parents so that the children’s best interests are always at the forefront. In fact, custody battles are really an inquiry into what is in the best interest of the child. It used to be thought that placing children with their mothers was almost a given. This mindset has changed, and both father and mother are on equal footing under the law when it comes to determinations of custody. Some frequently asked questions: Q. My husband left me for his secretary who is only ten years older than my daughter. Surely, I will receive physical custody? A. If only it were that simple. Courts are much more likely to focus on how this relationship would negatively impact your daughter rather than the relationship itself. What consenting adults do behind closed doors is not necessarily relevant to the type of parent they are. Every custody case is different, and the facts of each dissolving marriage differ. The one constant is the court’s focus on how these various facts impact the best interests of the child. REPEAT. The best interests of the child. The reason why this phrase is bolded and repeated throughout this article is that its importance cannot be emphasized enough. The way you discipline, your involvement in your children’s school and activities, your encouragement of your children’s relationship with their other parent, your willingness to co-parent, your ability to provide, and numerous other factors go into an analysis of what parenting arrangements are in the best interest of the children. In determining the best interests of the child, the law provides the judge with seventeen factors he or she may consider including, but not limited to: The love, affection, bonding, and emotional ties existing between each parent and the child; The capacity and disposition of each parent to give the child love, affection, and guidance; 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 mental and physical health of each parent; and Any recommendation by a court appointed custody evaluator or guardian ad litem. See §O.C.G.A. 19-9-3 . Q. What is a Guardian Ad Litem? A. A Guardian Ad Litem, or “GAL”, is an attorney specially trained who is appointed by the Court (but that you have to pay for) to assist in the investigation of what custodial and parenting situation is in the best interest of the child. The GAL will offer a written or oral report to the Court and recommend custody provisions. The GAL will most likely come to your home, observe you and your children, your spouse with the children, speak to witnesses, review all medical and psychological records of the parties and/or the children, visit the children’s school and talk with just about anyone who may have information pertinent to the best interests of the children. The GAL is a neutral in the sense that they do not advocate for either parent—rather it is their job to advocate for the child. In simplistic terms, the GAL is your child’s lawyer but operates at the will of the Court. Q. My son is fourteen and says he wants to go live with his Father. I know this is only because I have rules in my house and his Father just lets him do whatever he wants and buys him everything he wants. What will the Judge do? A. As with all things in the law, it depends on the judge! Up until recently, a child fourteen or older could elect which parent he or she wanted to live with, and that decision was considered a fait accompli unless the chosen parent was unfit. However, the Georgia Legislature recently changed this law so that a fourteen-year old’s election would be honored so long as such election was deemed to be in the best interest of the child. This change is supposed to make it somewhat easier to challenge a child’s election, as showing a parent is unfit for custody is much more difficult than showing the best interests of the child are better served with you. This change in the law is relatively new and, in practice, most judges are apt to place great emphasis on the child’s election. Q. I was divorced two years ago. I want to move to New York, but my ex-husband is threatening to take me back to court to try and get custody if I leave. Can he? A. Once the divorce is final, most people breathe a heavy sigh of relief to be DONE! However, more often than not, some form of request to modify the court order will be in your future and, more often than not, it comes in the form of a request to modify custody and/or child support. In Georgia, you can modify custody if there has been a “change of circumstances” significant enough to warrant such a modification. Here, one parent moving out of state often qualifies as a change of circumstance thereby providing legal grounds to modify custody. As with all comments in this article, much depends on the individual circumstances of your case. You would probably retain primary custody BUT the parenting time granted to your ex would probably be enlarged and child support potentially decreased to provide financial means to enable long distance visitation. On the other hand, if your ex lives in the same school district, has remarried and there are half or step siblings, the children are involved in extensive team sports (i.e., they are very entrenched in their lives here and Dad can provide a very stable and happy home), you may be in for a fight. For the sake of your children, I sincerely hope you never find yourself in a custody dispute. But, if you do, remember that taking the “high road” is often the best for your children. Do not share with them the details of the case, do not bad mouth their other parent to them or around them, and do your very best to encourage their relationship with them. Loving your children more than you hate your ex-spouse will go along way towards the best interests of your children.
