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Custody
and Visitation in Georgia
Augusta GA Child Custody & Visitation Lawyer
Introduction to Custody and Visitation
The question of "What gets custody of the kids?" is one of the
most difficult and often the most emotionally draining both for parents
and their children, when spouses divorce. Custody and visitation are the
legal terms in court ordered determinations of which parent the child lives
with and the conditions for the child to visit the other parent. Custody
and visitation are never considered to be final. In Georgia, the law does
not favor either the mother or father. Rather, they look to the relationship
of each parent with the child. While grandparents and others may seek custody,
there is a presumption in favor of the natural parents. This section is
designed to give you a general knowledge of the issues involved in determining
the parties custody and visitation rights.
When should you have an attorney?
In the event that you have a highly volatile, hostile or contested custody
issue you should seek out a lawyer to represent you. Additionally, if the
other parent is using the services of an attorney, it is advisable that you
also have an attorney.
Jurisdiction
Jurisdiction is the imaginary fence that separates the subjects one court hears
from another. There are two types of jurisdiction: personal and subject matter.
The court must have both types of jurisdiction to hear a case. Personal jurisdiction,
the power to require a person to appear in court, is discussed in the Service
of Process section of this Web site. To have jurisdiction over your specific
custody or visitation case the court will require one of the following: [Georgia
has statutory guidelines for determing custody].
Georgia is the home state of the child (lives in state, goes to school in
state) and the parent has sufficient contact with the state (works, votes,
lives, pays taxes in Georgia).
Georgia was the child's home state within the last six months and the parent
filing for custody continues to live in Georgia and the child is absent from
the state because another person took them out of Georgia claiming custody.
The child and at least one of the parents have significant connection with
Georgia (live, work, go to school here) and in Georgia there are more records
and witnesses to give evidence of the child's present or future care, protection,
training and personal relationships.
The child is physically present in Georgia and was abandoned or emergency protection
is necessary (the child was threatened or subjected to abuse or neglect).
No other state would have jurisdiction based on 1, 2, 3, or 4 above.
Another state says Georgia has jurisdiction.
Child was removed from Georgia and the Uniform Child Custody Jurisdiction Act
does not apply and no other state has jurisdiction, then Georgia will have
jurisdiction if:
Georgia was where the married couple lived, paid taxes, voted, etc., but the
parents are now currently separated or divorced or Georgia was where the marriage
contract was last performed.
One parent is a resident of Georgia and was a resident when the child was removed.
Court has personal jurisdiction over the parent who has removed the child.
The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by Georgia,
as well as the other 49 states. This act gives jurisdiction for custody cases
to the location that is most closely associated with the child. Within Georgia,
the Circuit Court has jurisdiction to hear child custody cases. That court
has the power to override any agreement if they believe the agreement is not
in the best interest of the child.
If you do not understand what you have just read or are not
sure if the court will have jurisdiction to hear your case, you should consult
our attorneys.
Unmarried Cohabitants
If the parents are unmarried, the
child is the child of his/her mother. In order for the father to assert rights
to the child (including rights to custody
or visitation), paternity must be admitted or established in court. Paternity
can be established by: judicial determination of paternity; father's acknowledgment
of paternity in writing; father's open and notorious recognition of the child
as his own; or by marrying the mother and then acknowledging himself as the
father, either in writing or orally. In order for a father to bring suit to
establish paternity by judicial determination, he should file an action for "filiation";
but, this is not required to seek custody if any of the other three methods
has established paternity. Once paternity is established, neither party will
be given a preference based solely on the gender. If you are seeking to establish
paternity, consult an attorney.
What if we agree about custody and visitation?
Custody Agreements
If you and the other parent have already come to a fair agreement on the custody
and visitation issue, you may want to write your own stipulation and consent
order. A stipulation is a statement of the settlement that you have reached.
It is accompanied by a consent order for the judge to give the agreement the
power of a court decision.
If you choose to go this route, you and the other parent should be as specific
as you can to avoid future conflicts. Who has legal custody? Which holiday
does the child spend with you? What time and where may the other parent pick
the child up? What time should the child be returned home? What is the procedure
to follow if either of you are running late and won't be there on time? How
much notice should you be given if they are planning a vacation? How far away
may the other spouse move? What you might think you can figure out as you go
along could actually blow up into a full scale war later. The Stipulations
should state everything that you have agreed upon. You should not rely on any
oral promises. If you both agreed on it, write it down (no matter how trivial
it may seem now). .
Mediation
If you and your spouse are having trouble reaching an agreement, you should
consider mediation. You may have heard the term mediator used in news reports
about labor negotiations or the 1994 baseball strike. A mediator specializes
in helping people reach an agreement that is fair and will last. The sessions
are confidential and are not reported to the court. A mediator's role may
be limited to custody or may also cover other issues such as marital property
if you choose. Mediation is not an option that is appropriate in cases where
there is a genuine issue of physical or sexual abuse of the child or one
of the parties. It is also important to get a legal advisor for this process.
The mediator's role is not to take sides, but to bring the two sides together.
Additionally, if the mediator is not an attorney, he/she may be unaware of
some specific legal issues.
Types of Custody
Temporary Custody
De facto (means in fact) custody refers
to who actually has custody of the child at this time. This does not carry
the weight of the court behind it.
In order to formalize custody before you begin litigation, one should file
a motion for Pendente Lite (meaning pending litigation) or temporary custody.
Temporary custody is subject to review based on the "best interests" of
the child standard, to be discussed below. It is not an "initial" award
of custody because it is understood to be temporary pending a full hearing.
In order to be awarded temporary custody you must file a request for hearing
and an order for temporary custody and support along with your Complaint for
Custody or Divorce.
Sole Custody
Custody is made up of: legal custody and physical custody. A person with legal
custody has the right to make long range plans and decisions for the education,
religious training, discipline, non-emergency medical care and other matters
of major significance concerning the child's welfare. A person with physical
custody has the child living primarily with them and they have the right to
make decisions as to the child's everyday needs. Sole Custody is when both
legal and physical custody are given to one parent. The child has only one
primary residence.
Split Custody
Split custody is easiest to describe in a situation where there are two children
and each parent obtains full physical custody over one child. Some of the considerations
that may bring about this result are age of the children and child preference.
Joint Custody
Joint Custody is actually broken down into three categories. Joint Legal custody
is where the parents share care and control of the upbringing of the child,
but the child has only one primary residence. In Shared Physical Custody the
child has two residences, spending at least 35% of their time with the other
parent. Additionally, you can make your own special joint custody agreement
that is any combination of Shared Physical and Joint Legal Custody. One example
of this is when there is one residence for the child and the parents live with
the child there on a rotating basis.
In order to assure the best interests of the child the court looks very closely
at Joint Custody agreements. The most important factor to Joint Legal Custody
that is also very relevant to Shared Physical Custody is the ability of the
parents to talk about and reach joint decisions that affect the child's welfare.
If you are constantly fighting over what religion or what school, the court
may strike down your agreement. Other factors include: willingness to share
custody; fitness; child's relationships with parents; child's preference; ability
to stabilize child's school and social life; closeness to parent's homes (primarily
a factor during the school year) ; employment considerations (e.g. long hours,
extensive travel, etc.); age and number of children; financial status; benefit
to parent. Additionally, the sincerity of the parties involved is important.
The court will want to make sure that joint custody isn't being traded for
concessions on other points. Another consideration is whether the grant of
joint custody will affect any assistance programs. Currently, AFDC and Medical
Assistance are affected based on the award of Joint Legal Custody. Be sure
to check with your contact at any social service agencies before entering into
an agreement or you may be jeopardizing your benefits. This list is not meant
to be exhaustive and the court will hear anything that they believe to be relevant.
The Best Interests of the Child Standard
Regardless of any agreement you may have reached, the court's standard for
initially awarding custody is to determine the best interests of the child.
In order to do this they look at several factors. It is important to remember,
though, that no one factor carries any more weight than any other. The following
list is some of the factors, but not all, that courts will consider.
Primary Care Giver
Who is the person who takes care of the child? Who feeds the child, shops
for their clothes, gets them up for school, bathes them, and arranges day care?
Who does the child turn to when they get hurt?
Fitness
What are the psychological and physical capacities of the parties seeking
custody? The court may also consider evidence of abuse by a party against the
other parent, the party's spouse, or any child residing within the party's
household (including another child).
Character and Reputation
Agreements
Is there a custody stipulation already drawn up?
Ability to Maintain Family Relationships
Who will be able to keep the child's family most intact? Who is going to let
the child speak with their ex-mother-in-law, for example? Who will not penalize
the child for any adverse action on the part of the other parent.
Child Preference
The decision of the court may be considered reversible error if they won't
hear the child's preference. However, the court has the discretion to interview
the child out of the parents' presence. A child as young as 5 or 6 years of
age may be heard. Though it is rare the court will hear from a child under
7 years, the child's ability to tell the truth from fiction and maturity will
be the guidelines for whether a child may be heard. A child of 10 or 12 years
of age is certainly entitled to have their opinions heard and given weight
in legal proceedings about custody. Additionally, the court has the power to
appoint an attorney for the child in contested cases.
Material Opportunity
Which parent has the financial resources to give the child more things?
Age, Health and Gender of Child
Residences of Parents and Opportunity for Visitation
How close do the parents live to each other? How close do they live to members
of the child's extended family? Which parent lives closest to the child's school
and social circle?
Length of Separation
Any Prior Abandonment or Surrender of Custody
Is there a history of one parent walking out and leaving the other parent
to cope with the child and the home? Which parent left when you last broke
up?
Religious Views
These will bear on the court's decision only if shown to affect the physical
or emotional well being of the child.
Visitation
Visitation is the part of the court order that defines the conditions for
the non-custodial parent to have contact with the child. Visitation is limited
by legal custody being vested in the other parent. This means that your visitation
does not give you the authority to conflict with the long range decisions and
policies of the parent with legal custody. For example, if the parent with
legal custody has decided to raise the child in the Jewish tradition, the parent
with visitation rights may not take the child to be baptized in a Catholic
church.
Even in cases of abuse, the only reported cases have upheld supervised visitation.
Supervised visitation is when the parent is only allowed to visit with the
child in the company of another person. This person is usually a friend or
relative that the two parents agree will be allowed to act as a chaperon. Supervised
visitation often calls for a restriction of visitation to a particular location
and time.
Who can be awarded visitation? Obviously a biological parent can be awarded
visitation. Additionally, grandparents (even when the parents weren't married
or are not currently divorced) and step-parents may be awarded visitation rights
in Georgia.. While there are no reported cases of brothers or sisters being
given visitation, a strong argument could be made that it would be in the best
interest of the child.
When can visitation be denied? The court has the power to deny visitation.
Normally the court will only stop visitation for a certain time or until a
certain task is performed. For example, the court has previously stayed visitation
until the parent met their financial obligation. If your spouse should deny
you court ordered visitation, you first file for a modification of visitation
for a more definite schedule, before filing a contempt action. Many parents
feel they have the right to stop paying child support, but they are wrong.
Withholding of child support will only get you in trouble and possibly arrested.
When the Custody Order Agreement is Violated
People go into courthouses everyday telling clerks that the parent has not
returned the child at the scheduled time following visitation and they don't
know what to do. When a custody order is violated the law requires the custodial
parent/lawful custodian to first demand the return of the child.
If the child has actually been stolen by the other parent you should report
this to your local police department immediately. The FBI can be called in
to find the fugitive parent and the child as well.
The only exception to this rule is when the child is in clear and present
danger (the victim of abuse or abandonment) requiring the noncustodial parent
to save them. The noncustodial parent must be ready to prove this clear and
present danger and they are required by Georgia law to file a petition within
96 hours. In that event, both parents will need a lawyer.
Once an incident like this has happened, you may want to consider modifying
the custody order.
Modification of Custody
When a parent seeks to have the custody
order changed, it is his/her burden to show the court why it should be changed.
The court follows the old notion
of, "if it isn't broke don't fix it." This is based on the idea that
stability is best for the child unless you can show that there is something
in the environment that will adversely impact on the well being of the child.
This is not as simple as it may seem. The factor(s) in the environment have
to not just make your home as good as the custodial parents, but better. To
do this you must show that there has been a substantial change in circumstances
and that it is in the child's best interests to make the change you are proposing.
If the two homes are thought to be equal, then custody will stay as it is.
Remember, a temporary or pendente lite custody order is not a final order.
You would not be required to show a substantial change in circumstances to
have custody changed in the "permanent" custody order.
A child at least 16 years of age can seek a change in custody on his/her own.
However, it will be the minor's burden to prove that a change of custody would
be in his/her best interests at this time.
The court that made the original custody and visitation order retains jurisdiction
to decide modification unless the parties and child no longer have close ties
to the court and the court surrenders its jurisdiction. However, the court
with original jurisdiction may refuse to hear the custody case if a child has
been wrongfully taken from another state or taken without the consent of the
person entitled to custody.
Taxes
Usually the parent with custody can
claim the exemption for the child. However, the parents may agree to claim
the child exemption on alternate years. In that
case, the parent with custody needs to sign IRS Form 8322, Release of Claim
to Exemption. Whether or not you are taking the exemption for the child, you
may still file as "head of household."
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