Family Law

How do Judges Decide Child Custody in Georgia

By Kristina Otterstrom, Attorney
Making sense of custody orders in Georgia.

Custody and Visitation Basics in Georgia

When parents separate or divorce, they will need to agree on custody and parenting issues. If the parents can't resolve their issues, a judge will have to make custody decisions and issue an order.

Your custody order will address both legal and physical custody. Legal custody involves a parent’s right to make medical, educational, religious, or legal decisions on the child’s behalf. The parent with physical custody lives with the child. Parents can share legal and physical custody (called “joint custody”) or one parent may have sole physical and/or legal custody.

In cases where both parents are fit and proper parents, a judge must at least consider a joint custody arrangement. This doesn’t mean a judge has to award joint custody, unless the judge specifically finds that a joint custody arrangement is in a child’s best interests. For example, in one Georgia case a custody case was remanded because the juvenile court failed to consider a joint custody arrangement. The juvenile court had awarded the mother sole custody even though both parents were educated, responsible professionals and both were able to adequately meet the child’s needs.

A joint custody arrangement doesn’t mean that parents have exactly equal time with their child, but it can benefit a child through regular and consistent time with each parent. In another case, the Georgia Court of Appeals confirmed that a judge should consider a joint custody arrangement even in cases where parents live far apart because of the potential benefits to the child.

How Does a Judge Decide Custody?

When determining custody, a judge will look for the arrangement that will best promote a child’s well-being and happiness. A child’s best interests are central to any custody decision. A judge will determine a child’s best interests by evaluating several factors, including:

  • the child’s relationship and bond with each parent
  • the child’s relationship and bond with siblings, half siblings, or other members of either parent’s household
  • each parent’s ability to give continued love, affection, and guidance to the child
  • each parent’s awareness of and ability to meet the child’s needs
  • each parent’s ability to provide the child with food, clothing, medical care and other basic care
  • each parent’s ability to offer a safe, stable, and nurturing home environment
  • the length of time the child has resided in his or her current residence and any reasons for maintaining that continuity
  • each parent’s physical and mental health
  • each parent’s involvement in the child’s social, educational, and extracurricular activities
  • each parent’s employment schedule and related flexibility or limitations to care for the child
  • each parent’s past performance of parenting responsibilities
  • each parent’s willingness to foster a relationship between the child and the other parent
  • any recommendation from a custody evaluator or guardian ad litem
  • either parent’s history of domestic violence, child abuse, or criminal history, and
  • either parent’s history of substance abuse.

Additionally, once a child has turned 14, a judge may consider a child’s preference for custody. The child’s choice of custody is presumptive unless granting custody to that parent clearly would not serve the child’s best interests. If a child is between 11 and 14 years old, a judge may consider the child’s preference for custody, but that preference is not controlling.

Can Parents Make Their Own Custody Agreements in Georgia?

Parents can avoid the stress and expense of trial by creating their own custody agreements—parents with a good working relationship may be able to resolve custody issues on their own. Many local Georgia courts publish free divorce and custody forms on their websites. Other times, a mediator can help parents reach a custody settlement and draft the agreement.

Once you and your spouse have reached an agreement, you must put those terms in writing and sign the agreement before a notary. A judge will review the custody agreement for completeness and to ensure its terms meet your child’s best interests. A complete custody agreement should address physical and legal custody, child support, visitation (including holiday and summer visitation schedules), medical insurance coverage, and any other relevant issues. If your agreement fails to resolve all relevant custody issues, a judge may require you to litigate custody at trial.

Will a Judge Modify My Custody Order?

Either parent can file a motion to modify custody if there’s been a material and substantial change in circumstances and a custody change would serve the child’s best interests. Additionally, a judge can modify custody if a child 14 years old or older expresses a preference to live with the other parent and as long as the custody order is at least 2 years old.

Finally, one parent’s deployment is justification for an immediate temporary custody modification. Georgia law precludes a judge from issuing a final custody order until 90 days after the deployed parent’s return. The non-deployed parent must provide the deployed parent with regular and continuing contact with the child.

Minor lifestyle changes won’t typically justify a custody modification. For example, one parent’s new job or remarriage may not be enough for a judge to adjust custody. However, major life changes including a parent’s deployment or a teenage child’s preference are usually enough to warrant a custody change as long as the change serves a child’s best interests.

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