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Child Custody Basics in Georgia

In Georgia divorce and family law cases, there are two types of custody: legal custody and physical custody. In almost all cases both of the custody types are shared between the parents.  However, some child custody cases do involve grandparents, uncles, aunts and non-family members depending on the circumstances. In this discussion, we will mostly discuss issues that affect parents in child custody cases.

Typically, the parents are awarded joint legal custody, which means that the parents must share in all of the decision making in regards to the children and that the parents have equal rights to the child’s medical and educational records. In the case of the parents not being to make a joint decision, one parent will be awarded final decision making authority which allows that patent to ultimately break the stalemate on the issue. Typically, final decision-making goes to the parent who has primary physical custody.

In most cases, physical custody is also shared. However, usually there is one parent designated as the primary physical custodian and the other parent receives secondary physical custody. The primary physical custodian is also the parent that will usually receive child support if child support is to be paid, so this can be a very important distinction in a custody matter.

The courts determine physical custody based on several factors, including, most importantly, who has been the child’s primary care giver while the parents were together. As mentioned, in most cases the parents are awarded joint custody of the children, legal joint custody. Joint physical custody is typically an arrangement where the parents try to share equal parenting time. To make joint physical custody work, the parents have to be willing to work together and should be accepting of the idea that they will be interacting with their ex-spouse for some time.

If joint custody is not given, then that means one of the parents has sole custody. Sole custody is very unusual and it means that all of the custodial rights are assigned to one parent and the other parent has no rights. Having sole custody does not mean that the other parent is free from their obligations, such as child support. If the child is fourteen (14) years old, then they will be able to choose the parent that they want to live with. In some cases, the parent that is not selected may be able to present evidence as to why the child’s choice is not in their best interest. However it is unlikely that the court will go against the child’s choice in most cases.

It is also important to understand that child support does not affect visitation rights, meaning that if a parent did not pay their child support they are still able to visit their child on the court ordered visiting times. Using visitation rights as leverage for child support is not something that the court will approve and can be an independent basis for contempt, separate from the non-payment of child support by the other party.

It is possible for child custody to be changed through the legal process of obtaining a modification. And frequently a modification of child custody will also include a modification of child support. The person that wants to modify child custody has to prove that the custodial person is no longer able to care for the children or that it is no longer in the child’s best interest for the other party to be the primary physical custodian.

There is no time frame in which a parent must wait to file a custody modification; however they do need to show that there is enough of a change in the situation that a modification of custody is warranted. Although custody modifications can be uncontested or settled before a trial, ultimately the court will have to approve any child custody modification and issue the order finally deciding the matter.

If you have questions regarding a child custody matter in Georgia, call our office at 770-609-1247 to speak with an attorney.  We handle cases in the Metro-Atlanta area, including but not limited to: Alpharetta, Roswell, Johns Creek, Milton, Cumming, Atlanta, Duluth, Norcross, Marietta, Woodstock, Dunwoody and Buckhead.

Content Revised: 2015-10-27

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