What should I know about child custody?

Contents

• What is child custody?
• What are the parents' rights to child custody?
• What are the childs' rights?
• What are the grandparents' rights?
• What is a parenting plan?

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What is child custody?

Child custody is a legal term regarding guardianship. It is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care.

 

What is physical custody?

Physical custody is who the child lives with. 

What is legal custody?

The parent or parent with legal custody makes major decisions concerning the child, including the child's:

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

What is joint custody?

A judge might award joint physical custody, however, a judge will normally award one parent primary physical custody. 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, 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.

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

How does a judge decide who should have custody?

The judge may consider a long list of factors when deciding who should have custody of the child. Some of them 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

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What are the parents’ rights to child custody?

If the parents are married, they have equal rights to visitation and custody. 
 

What if the parents are not married?

If the parents are not married, under Georgia law, only the mother of a child born out of wedlock has custody rights to the child. Parents can agree on which parent shall have custody, but the court ultimately decides what is in the best interest of the child.

For an unwed father to get any parental rights, including custody or visitation rights, he must file a legitimation action in court. Or, the father and mother can sign a voluntary acknowledgment of legitimation. 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.
 

What is a legitimation action?

A legitimation action legally recognizes that a man is the father of the child and gives the child the right to inherit from the father. As part of a legitimation action, the unwed father can also ask for custody, visitation and/or child support. 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.
 

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 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?

The surviving parent is normally entitled to custody of the child upon the death of the other parent. However, a non-parent may ask the court to give him or her custody. If there is clear and convincing evidence, the court may award custody of the child to a non-parent. This award would be based on the child's best interest and welfare, but there is a presumption in favor of the natural parents.

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What are the child’s rights? 

If the child is 14 or older, the child will have the right to select the parent he or she wants to live with. The child's selection will stand unless the parent so selected is determined not to be in the best interests of the child. 

If the child is between 11 and 14, the judge will consider the wishes and educational needs of the child to determine which parent will have custody. The judge will have complete discretion in making this determination, and the child's wishes will not be controlling. Parents should be careful not to put children in the position of having to choose one parent or the other parent. Normally, children love both their parents and will do all they can to avoid hurting the feelings of either parent.

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What are the grandparents’ rights?

A grandparent is: 

• the parent of a parent of a minor child, 
• 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. 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.

There are two ways for a grandparent to 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. To file this type of action:

• There cannot be any other cases before the court that involve custody or visitation for the child
• The legal parents (including adoptive parents) of the child must be separated or divorced.  If the parents are married, a grandparent cannot file for visitation.
• 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

2. Join an Existing Case: A grandparent can get involved in an existing case for custody, visitation, divorce, or termination of parental rights.

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 by clear and convincing evidence, two things:

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

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

• The child 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 grandparent
• There is any other circumstance which shows 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 has objected to the grandparent’s visitation, it is not enough to show that the visitation will be in the best interests of the child. Instead the grandparent must 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.

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

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

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 by clear and convincing evidence, two things:

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

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

• The child 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 grandparent
• There is any other circumstance which shows 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, that parent’s parent must prove that the child will be harmed if the court denies the grandparent’s visitation rights. If the living parent has objected to the grandparent’s visitation, it is not enough to show that the visitation will be in the best interests of the child. Instead the grandparent must prove that the child will be harmed if they are not allowed to visit. For example, if the grandparent has already formed a strong bond with the child, they can prove that the child will experience emotional trauma if they are not able to see the grandparents.

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

Yes, the visitation cannot interfere with 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. 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 goes into a parenting plan. If parents are in agreement, they can file a joint plan, but otherwise, each parent must submit a separate plan. 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 phsycial custody changes?
• What can a parent do if the other parent odes not return the child aftr 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 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.

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Can the court change or modify a custody decision? 

A court can change a custody decision if a new court case is filed. The 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 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.

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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 got 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.
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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.

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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.

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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 a material change of circumstances and you could file an action for modification of custody or visitation. 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 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 grandparent can only adopt if: 

• No legal parent is alive at the time of adoption, 
• The living parents have surrendered their parental rights to enable the grandparent to adopt the child, or 
• The 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 parent, but who proves that he or she should have visitation or custody rights with the child.
 

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. That the relationship was fostered or supported by a parent of the child. The parent has understood, acknowledged, or accepted or behaved as though you are a parent of the child; 
4. Accepted full and permanent responsibilities as a parent of the child without expecting to be paid; and 
5. Demonstrated that the child will suffer physical harm or long-term emotional harm if you're not given custody. Shown that continuing the relationship between you and the child is in the best interest of the child. In determining the existence of 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 has the child 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 to be an equitable caregiver on the basis of the consent of the child's parent. The court might grant standing on the basis of a written agreement between you as an equitable caregiver and the child's parent. This agreement must indicate the want to share or divide caregiving responsibilities for the child. 

The court may enter an order for custody or visitation to establish parental rights for an equitable caregiver.

The court may enter an order as appropriate to establish parental rights and responsibilities for such individual, including, but not limited to, custody or visitation.

 

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. A 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 a prima facie evidence. 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.

 

When can you not file an equitable caregiver action?

You cannot file an original action:

1. When both 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 child or his or her parent.

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