What should I know about child custody?

Contents

• What is child custody?
• What are the parents’ rights to child custody if they do not have a court order?
• What are the child's rights?
• What are the grandparents' rights?
• What is a parenting plan?

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What is child custody?

Child custody is a court order or legal status that establishes the legal right of a parent or parents to a child. Child custody can also establish the legal right of another caregiver. It determines how the child will be cared for, including legal custody, physical custody, and visitation.

Without a courtorder, someone has custody of the child by default. This typically occurs in situations including:

• The child's parents are married (in which both parents have equal rights to the child), or
• The parents have never been married and no legitimation or custody case has been filed (in which the mother holds all custodial rights.)

What is legal custody?

The parent or parents with legal custody makes major decisions concerning the child. These typically include the child's:

• Education, 
• Health care, 
• Extracurricular activities, and 
• Religious training

If two people have "joint legal custody," they share in making these decisions. That means they must communicate about major decisions when they come up.  Most often, parents share joint legal custody so that neither parent has absolute power about major decisions. It is common that one parent is designated "tiebreaker authority," meaning if both parents cannot agree on a major decision, the designated parent can make the decision. The parent with "tiebreaker authority" must consult and make a good faith effort to agree with the other parent before using their authority.

If one person has "sole legal custody," they typically make all major decisions for the child without consulting the parent.

What is physical custody?

Physical custody is who the child lives with. This means the physical care and supervision of a child. This typically occurs in situations including:

• One parent or caregiver can have "sole physical custody," meaning the child lives with that person 100 percent of the time. 
• One parent or caregiver can have "primary physical custody," meaning that person's home is the child's primary residence. The child may spend significant time with their other parent or elsewhere.
• Two parents or caregivers share "joint physical custody," meaning the child spends some time in both parents' homes. Joint custody doesn't always mean equal time. 

The parent with whom the child lives has the authority to make all routine decisions concerning the child, except for day-to-day decisions while the child is visiting the other parent. “Day to day decisions” may be things like what time a child goes to bed, what they eat, and what clothes they wear. Generally, even if one parent has primary custody and the child lives with them most of the time, they cannot control these things during the child’s time with the other parent. These are different from the major decisions that are usually addressed in a court order for legal custody.

What is visitation?

The parent who does not get physical custody is usually awarded visitation, also called Parenting Time. The court may place restrictions on visitation if it is in the best interest of the child. 

What is joint custody?

Although a judge might award joint physical custody, primary physical custody is normally awarded to one parent. However, judges often award joint legal custody. The law wants both parents to have equal access to the child's medical and educational information. Courts want both parents involved in major decisions related to the child's upbringing.

What is sole custody? 

When one parent is awarded both physical and legal custody, with absolutely no parenting time or decision-making authority shared, this is called sole custody. The parent with whom the child lives has the authority to make all decisions concerning the child.  except for day-to-day decisions while the child is visiting the other parent.

How does a judge decide who should have custody?

Georgia law generally states that child custody should be decided based on the best interests of the child. The judge may consider a long list of factors when deciding who should have custody of the child, or how custody should be split between two parents or caregivers. Some of the factors are:

• The bonding and emotional ties that exist between each parent and the child
• The length of time the child has lived in the current home and whether that environment is stable and satisfactory
• The mental and physical health of each parent
• Evidence of family violence, child abuse, substance abuse or criminal history of either parent
• The ability of each parent to meet the educational needs of the child
• The ability of each parent to provide the child with food, clothing, and medical care
• Each parent's involvement in the child's educational, social, and extracurricular activities
• Relationships between the child and other people in each parent's home and family, including stepparents and other adults
• Relationships between siblings, including step siblings and half siblings
• The ability of each parent to communicate and co-parent appropriately with the other parent, and to support the child's relationships with both parents.

 

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What are the parents’ rights to child custody if they do not have a court order?

If the parents are married at the time of the child's birth, they have equal rights to visitation and custody. This can also apply if the child's biological parents later marry each other. If the child's biological parents are married, neither one can prevent the other from interacting with the child and other caregiver roles. This is not the case if a court order establishes custody to one parent, which can occur in a custody order or a Temporary Protective Order.

If a child is born while the mother is married and the child's biological parent is not the spouse and does not intend to parent the child, the spouse can assume the child's other legal parent. In this situation, either the mother, the biological parent, or the spouse can file a court action to clarify who the child's parents are and who has custody of the child. 
 

What if the parents are not married?

If the parents have never been married to each other, under Georgia law, only the mother of a child born out of wedlock has custody rights to the child. This is the case even if the parents have an informal agreement and are both involved with the child's care or live together. This means the mother is protected by law if she chooses to cut off or restrict the father's access to the child.

For an unwed father to get any parental rights, including custody or visitation rights, he must file a legitimation action in court. A legitimation action legally establishes the person is the father of the child. A legitimation case can also include a father's request for custody or visitation of the child. However, legitimation alone does not grant custody, only the right of a parent to ask for custody or visitation.

What is a legitimation action?

A legitimation action is a legal process that allows a biological father of a child born out of wedlock to establish a recognized legal relationship with the child. Without a legitimation order, the father has no legal standing to claim parental rights or responsibilities, even if they are listed on the birth certificate. Just because a father's name is listed on the birth certificate does not give the father any legal rights to custody or visitation under Georgia law. It may not give the child the right to inherit from the father. A child support order does not necessarily give a father the right to custody or visitation.

A legitimation order does not always give the father custody, visitation rights, or obligate the father to pay child support. However, a legitimation order can contain those provisions. Otherwise, the father can petition the court for custody or parenting time once legitimated, which the court will decide based on the child’s best interests.

A court may deny a father’s petition for legitimation if the judge believes it is not in the child’s best interest to be legitimated. This may happen even if the judge agrees that the father is the biological father of the child. Usually, the court believes it is in the best interest of children to have two legal parents, so it is uncommon for legitimation to be denied. Most often, legitimation is denied either because a father has declined to be involved in a child’s life for many years before seeking legitimation; or because there is a reason it is not in the child’s best interest to have a legal relationship to their father in cases of abuse, neglect, and so on. Sometimes, even when the court finds it is not in a child’s best interest to spend time or have a relationship with their father for safety reasons, the court will nonetheless grant the Legitimation so that the child can inherit and receive benefits from their father’s account. 
 

Only the father is allowed to file for legitimation in court and the petition should be filed in the county where the mother and child reside.
 

What if the parents were married and are now divorced?

According to Georgia law, any child resulting from a marriage must be disclosed during a divorce. During a divorce order, the court will typically address custody and child support for a family. 

There are two situations where custody may need to be addressed for the first time, even after a divorce:

• Children not listed in the divorce:
  • If parents failed to tell the court about their children during the divorce, this is a legal error in the divorce order. The divorce decree will not cover those children's custody or support if the children were not disclosed to the court. The parents must go back to court to have custody, support, and parental rights determined. Legal counsel is strongly advised to navigate this correction.
• Child conceived after the divorce:
  •  If a child is conceived and born after a divorce between the formerly married parents, a court action is needed to establish parental rights and responsibilities. If the mother files this action, she can start a paternity action for support and custody. If the father wants legal rights, he must file a legitimation action. The court will again make custody and support orders based on the child’s best interests.

In both cases, the court will determine custody and support according to what is best for the child. A private agreement between parents may become part of a court order, but does not protect the parties without a judge’s approval. Proper legal steps are necessary to ensure enforceable rights and responsibilities for all parties, and stability for the child..
 

Does the law favor giving custody to the mother or the father? 

No. The parents are equal under the law. There is no presumption that the child should live with the mother or the father. The decision always depends upon what the judge finds is in the best interest and welfare of the child, based on the evidence.

Who is entitled to custody of a child upon the death of a parent?

If one parent dies, the surviving parent is normally entitled to custody of the child upon the death of the other parent. For an unmarried father, this may require filing a legitimation action after the mother’s death to establish that he is in fact the child’s other legal parent. However, unless a court has ordered otherwise, either legal parent will have the right to custody of the child in the event of the other parent’s death.

However, a non-parent may ask the court to give him or her custody, such as a grandparent or steparent. If there is clear and convincing evidence that the child’s best interest would be served by placing them with the non-parent, the court may award custody of the child to that person even if their other parent does not agree.  This award would be based on the child's best interest and welfare, but there is a presumption in favor of the legal parent.

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What are the child’s rights? 

If the child is 14 or older, the child may select the parent they want to primarily live with. The child's selection will generally stand, unless the parent they selected is determined by the court not to be in the best interests of the child. 

 A child’s preference about which parent to live with can be communicated to the court by meeting privately with the judge, by stating their preference to a Guardian ad Litem who will then communicate it to the court, or by signing an Affidavit of Election stating their desire to live with one parent. 

If a child is between 11 and 14, a judge may consider the child's wishes and educational needs to determine which parent will have primary custody. The judge has complete discretion in making this determination, but the child's wishes may be a deciding factor for a child under 14.

Generally, parents should be careful not to put children in the position of having to choose between their parents. Normally, children love both their parents and will do all they can to avoid hurting the feelings of either parent. A child may decide to share their opinion about custody with the court, but should not be pressured to do so or to make a choice about where they prefer to live, if they have not expressed such a preference. It is a good idea to consult with an attorney before considering having a child make a statement to the court about their custody preferences.

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What are the grandparents’ rights?

A grandparent is: 

• the parent of a living parent of a minor child, or
• the parent of a child’s parent who has died, or 
• the parent of a minor child’s parent whose parental rights have been terminated.  

A biological father’s parents are grandparents, even if the father was not married to the mother and has not legitimated the child. The court may require genetic testing to establish the relationship of grandparents whose son was an unmarried father, however, once established as such these grandparents are treated equally with the mother’s parents. In Georgia, grandparents have the right to ask the court for visitation rights. These rights are not automatic and must be granted by the court after the judge makes a finding of fact.

There are two ways a grandparent can ask the court for visitation.  

1. File a Petition for Visitation: A grandparent can file an original action in the form of a “Petition for Visitation” in the superior court. A grandparent’s Petition for Visitation should be filed in the county where the parent and child reside. To file this type of action:

• There cannot be any other cases before a Georgia court that involve custody or visitation for the child.
• The legal parents (including adoptive parents) of the child must be separated or divorce, or one parent must be deceased. If the parents are living and married, a grandparent cannot file for visitation against both parents.
• A grandparent cannot file this type of action more than once every two years.
• A grandparent cannot file this type of action in any year that another custody action has been filed regarding the child, even if that action has already concluded.

2. Join an Existing Case: A grandparent can get involved in an existing case for custody, visitation, divorce, or termination of parental rights. This will involve the grandparent asking the court to be added as a party to the case, along with the child’s natural or legal parents and any other interested parties.

What does a grandparent have to do to win a visitation case?

In most situations, to win a visitation case, a grandparent must show the court two things by clear and convincing evidence:

1. The child's health or welfare would be harmed if the child could not visit with the grandparent, AND
2. Visitation with the grandparent is in the child's best interests

The court has to consider certain factors, and may find that harm to the child is reasonably likely to occur if, before filing the original action or intervention:

• The child previously lived with the grandparent for six months or more
• The grandparent provided financial support for the child’s basic needs for at least one year
• There was a pattern of regular visitation between the child and the grandparent
• There are other circumstances show that the child would likely have emotional or physical harm if visitation is not granted

Additionally, a court may presume that not getting any visitation with a grandparent would be emotionally harmful to a child’s health.  However, the parents can show the court that this presumption is not true for their specific case.

If a parent dies, is incapacitated, or is incarcerated, the grandparent must prove that the child will be harmed if the court denies the grandparent’s visitation rights. If the living parent objects to the grandparent’s claim for visitation, it is not enough to show that the visitation will be in the best interests of the child. Instead, the grandparent must also prove that the child will be harmed if they are not allowed to visit. For example, if the grandparent has a strong bond with the child, the child might experience emotional damage if they can't see the grandparent. On the other hand, if a parent has prevented a grandparent from forming a close relationship with the child in the first place, the child will not be harmed by continuing to not visit. 

Are there restrictions on the visitation that a grandparent can be granted? 

Yes, grandparent visitation cannot interfere with a child’s school or regular extracurricular activities. However, any visitation given to a grandparent shall include at least 24 hours per month.

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What is a parenting plan?

Georgia law requires parenting plans in all custody or visitation cases filed after January 1, 2008. A parenting plan is a legal document outlining how parents will share responsibilities and decision-making for their child after separation or divorce, or when establishing custodial rights after a legitimation. 

The purpose of a parenting plan is to help parents think through and set out how issues of custody and visitation should be decided. There are many requirements about what should be included in a parenting plan. If parents are in agreement about some or all of the issues in a parenting plan, they can file a joint plan, but otherwise, each parent must submit a separate plan. If the parents agree on some issues but not others, the court can decide on only the issues where the parents disagree. The court will enter a final parenting plan order as part of either: 

• The divorce decree (if married) or 
• The legitimation and custody order (if the parties are not married)

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Contents

• What if parents have joint legal custody but disagree about decisions related to the child's upbringing?
• Can the court change or modify a custody decision?
• What happens to child support if the parent who has physical custody changes?
• What can a parent do if the other parent odes not return the child after visitation?
• Do I have to send the child for court-ordered visitation if I do not think it would be best for the child to visit the other parent?
• Can I prevent the other parent from getting custody if I die?
• Can I prevent the other parent from moving?
• Can a grandparent go to the child's public events?
• Can a parent ask the court to change or stop the visitation with a grandparent?
• Can a grandparent adopt?
• What is an "equitable caregiver"?

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What if parents have joint legal custody but disagree about decisions related to the child's upbringing?

The custody order or parenting plan should explain how to handle such disagreements. The order or plan may say that the parent with primary physical custody will make the decision if there is a disagreement. However, a judge may also order that each parent will have the power to make certain decisions. Another option is that the judge may order a parent to be a "tie breaker" for each major issue when the parents cannot reach an agreement. However, "tiebreaker authority" should not come into play unless the parents have already discussed an issue in good faith and tried to reach an agreement. 

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Can the court change or modify a custody decision? 

A court can change a previous custody decision if a new court case is filed. The modification case should state that there has been a substantial change of circumstances that affects the interests and welfare of the child. Visitation may be modified without a change in circumstances, but no more than once in each two-year period. If less than two years have passed since the entry of the last custody order, the person filing a modification must show there has been a substantial change of circumstances.

If the non-custodial parent files the petition, it must be filed in the county of the custodial parent. If the custodial parent files the petition, it must be filed in the county of the non-custodial parent, unless the parent does not live in Georgia.

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What happens to child support if the parent who has physical custody changes? 

The parent without physical custody normally pays child support. After the parent with physical custody changes, the parent who just obtained physical custody will usually no longer have to pay child support. But, if the parent who has just obtained physical custody is behind on child support, he or she would still owe the other parent the arrears from their previous obligation to pay support.
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What can a parent do if the other parent does not return the child after visitation?

Once there is a court order in place, either party can file a contempt action and ask the court to enforce the order. The contempt should be filed in the county where the order was entered. Either parent can also file a criminal complaint with law enforcement for interference with custody.

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Do I have to send the child for court-ordered visitation if I do not think it would be best for the child to visit the other parent?

Usually, yes. If you refuse to follow the visitation order, the other parent could file a contempt action against you. If you do not think that the visitation arrangement is good for the child, then you should file an action to modify the visitation order. If there is an immediate safety concern, it is best to contact police or DFCS. 

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Can I prevent the other parent from getting custody if I die?

No. You can express your preference that a non-parent be given custody in your will. But, a judge will have to make the final decision after being asked to do so by the non-parent. After your death, the non-parent will have to file for guardianship or custody. In the petition, he or she will have to tell a judge why it is in the child's best interest for the non-parent to have custody instead of the other parent. You cannot control what a judge will decide. The only time a surviving parent will not have any right to custody of a child after the other parent dies is if their parental rights have been terminated. 

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Can I prevent the other parent from moving?

No, unless they are moving to another country. A parent is free to move where he or she wishes within the United States. However, the move could be considered a material change of circumstances and you could file an action for modification of custody or visitation. For instance, if the custodial parent is moving out of state and you would be unable to visit with the child regularly, you could file asking to become the primary custodian so the child can remain living in Georgia. Unless the custody order states otherwise, the parent who is moving must give the other parent 30 days' advance notice. This 30 day time period gives the parent who is not moving time to file an action for modification.

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Can a grandparent go to the child’s public events?

The court can order parents to tell a grandparent about all of the child’s public performances. This is true even if the grandparent does not get formal visitation rights.

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Can a parent ask the court to change or stop the visitation with a grandparent?

After a visitation has been granted to a grandparent, once every two years, a parent (or legal custodian or legal guardian of the child) can petition the court to amend or revoke the visitation. 

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Can a grandparent adopt a child? 

A grandparent can only adopt if: 

• No legal parent is alive at the time of adoption, 
• The child's living parents have surrendered their parental rights to enable the grandparent to adopt the child, or 
• The living parents' parental rights have been terminated by the court.

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What is an "equitable caregiver"?

An equitable caregiver is a person who is not a biological or legal parent, but who proves that they should have visitation or custody rights with a child to whom they have been a consistent parental figure.
 

What must you prove to be declared an "equitable caregiver"?

You must show the court by clear and convincing evidence that you have:

1. Fully taken a committed and responsible parental role in the child's life;
2. Engaged in consistent caretaking of the child; 
3. Established a bonded and dependent relationship with the child; and 
4. Accepted full and permanent responsibilities as a parent of the child without expecting to be paid.

In addition to showing that you have taken the above-listed actions, you must show the court by clear and convincing evidence that the child’s biological or legal parent has fostered or supported your relationship with the child. For you to be recognized as an equitable caregiver, the parent must previously have understood, acknowledged, or accepted or behaved as though you were a parental figure to the child.

After showing your and the parent’s actions in support of your claim to be recognized as an equitable caregiver, you must demonstrate that the child will suffer physical harm or long-term emotional harm if you're not given custody or visitation with the child. There must be clear and convincing evidence that continuing the relationship between you and the child is in the best interest of the child. In determining the potentialfor harm, the court will consider factors related to the child's needs, including, but not limited to: 

• Who are the past and present caretakers of the child; 
• With whom the child has formed psychological bonds, and the strength of those bonds
• Whether competing parties evidenced an interest in, and contact with, the child over time; and 
• Whether the child has unique medical or psychological needs that one party is better able to meet. 

A court may grant standing for you as an equitable caregiver from either the basis of the above criteria, or by the consent of the child's biological or legal parent. An agreement in support of an equitable caregiver relationship must indicate that the biological or legal parent wants to share or decide caregiving responsibilities for the child with the equitable caregiver. Custody and visitation between a legal parent and an equitable caregiver will typically be handled and documented in a parenting plan, very similar to that used between two parents who are divorcing or coparenting.

How do I file an action to be declared an "equitable caregiver"?

For the court to decide whether you are an equitable caregiver, you must:

1. File with the initial pleading an affidavit stating under oath the facts to support your relationship with the child. The pleadings and affidavit must be served upon all parents and legal guardians of the child and any other party to the proceeding; 

2. Any person who files a response to your pleadings must also file an affidavit in response, serving all parties to the proceeding with a copy; 

3. The court will determine on the basis of the pleadings and affidavits whether you have presented prima facie evidence that you have standing as an Equitable Caregiver. The court may hold a hearing to determine the undisputed facts that are necessary and material; and

4. If the court is in your favor, you will be able to proceed to trial.

Equitable Caregiver status is fairly new under Georgia law, added to the Georgia Code in 2019. Equitable Caregiver claims may be relevant for: stepparents who have acted as full-time parents to their stepchild; the intended second parent of a child born within a same-sex marriage (that is, a person who is not biologically related to a child born to their partner, but whom both partners intended should act and be recognized as the child’s second parent); and relatives/friends who take on a permanent, full-time parental role in the life of a child. It is highly recommended to consult with an attorney before filing a claim for Equitable Caregiver status, as it is very complicated and dependent on the specific facts of your case.  

When can you not file an equitable caregiver action?

You cannot file an original action as an equitable caregiver:

1. If both biological or legal parents of the child are not separated, and the child is living with both parents. 

2. If you are a foster parent, and the Division of Family and Children Services of the Department of Human Services has an open child welfare and youth services case involving such a child or their parent or parents.

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