Child Custody

siblingsWithout a doubt, the most difficult part of family law are those cases which deal with the disputed custody of children.

Georgia law sets out two (2) types of custody – legal custody and physical custody.

Legal custody determines the legal rights of the parties in relation to their child or children after all legal proceedings have concluded. Legal custody also addresses the main areas that parties must discuss in relation to their children, those decisions regarding medical, education, extra curricular, and religion. Types of legal custody including sole legal custody, or joint legal custody. The law presumes that both parties are equally fit and capable of sharing joint legal custody, though there certainly would be circumstances where one party would have sole legal custody.

Physical custody determines where the child or children primarily reside after all legal proceedings have concluded. There are many types of physical custody, including shared physical custody, primary physical custody, and secondary physical custody.

Although the parties can reach an agreement, out of court, regarding legal custody and physical custody, ultimately it is the judge who has the final say regarding all custody matters and he or she must sign off on all final orders regarding custody.

Custody may be decided by the Court in several different types of legal actions – 1) at the time of a divorce, 2) when legitimation and paternity are established for children born out of of wedlock, and 3) post-divorce actions when it would be appropriate to modify or change custody.

Election by a 14 year old child

Mother and child laughingIn custody actions, a child is never required by law to choose a parent with whom he or she wants to live. However, if a child is 14 years of age and wants to choose with which parent he or she lives, the child may sign an election, under oath, choosing a parent.

In such a case, the child’s choice is considered presumptive and the child will live with the selected parent unless the Court determines that it is not in the best interest of the child to live with that parent.

Additionally, a child signed election shall be considered a material change of condition or circumstances, if and only if the child’s election is made once within a period of two (2) years from the date that custody was initially decided. In these matters, the Court has broad powers of discretion and will apply the “best interests of the child” standard.

Father with daughterChildren between the age of 11 and 14 years of age

In custody cases where the child is between the ages of 11 and 14, the Court will consider the desires and educational needs of the child in determining which parent will have custody. In these matters, the Court has complete discretion as to how the child’s desires are to be considered, including through a report put forward by a guardian ad litem representing the child.

The Court has broad powers of discretion and will apply the “best interests of the child” standard in determining custody for a child.

Unlike the case with a 14 year old child, the desires of a child between the ages of 11 and 14 shall not be considered a material change of condition or circumstances which would warrant a modification of custody. Additionally, the Court has the power to grant temporary custody to the selected parent for a up to a six (6) month trial period.