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How do Courts Determine Child Custody?

  • One of the most serious and pressing issues of any couple who are going through a divorce is how custody of the children will be determined. Each parent usually has a very strong emotional bond with their children, and a divorce is a very serious upheaval in any parent-child relationship. In order to ensure that the negative effects of a divorce on children are minimal, courts have devised a set of policy considerations when deciding how to arrange custody that are based on the best interests of the child.

    Below, we’ll take a look at the various forms of child custody, and then go over some of the points that a court will consider when deciding child custody.

    Types of Child Custody

    Child custody can be split largely into two types: legal custody and physical custody.

    • Legal custody is the parent’s right to make decisions about the child’s life, including education, religion, healthcare, and other important concerns.
    • Physical custody refers to which parent the child lives with.

    In most cases, physical custody of a child is usually awarded to one parent, who is known as the “custodial” parent, who shares legal custody with the non-custodial parent. Physical custody can, in turn, be either joint or sole. In a joint physical custody situation, the child spends an approximately equal amount of time with both parents. This arrangement works best when the parents live close to each other and can demonstrate to the court that they have the ability to make joint decisions and cooperate with each other for the child’s sake. In a sole physical custody situation, the child lives with one parent, while the other parent is allowed visitation rights unless the court determines that such visitation would not be in the best interest of the child.

    The Best Interest of the Child

    If there is disagreement over which parent should be the custodial parent, courts rely upon a number of factors to decide this question in the best interest of the child, including:

    • Each parent’s home environment and ability to care for and nurture the child.
    • Each parent’s physical and mental health,
    • Each parent’s emotional ties to the child,
    • Each parent’s ability to provide the child with clothing, food, and medical care,
    • The relationship between the child and any siblings, half-siblings, or step-siblings who are in either parent’s home,
    • Each parent’s familiarity with the child’s health, educational, and social needs,
    • Each parent’s involvement in the child’s schooling and extra-curricular activities,
    • Each parent’s willingness to foster a relationship between the child and the non-custodial parent,
    • The relative stability of each parent,
    • Any history of substance abuse by either parent
    • Any history of physical abuse, sexual abuse, or neglect of children by either parent, and
    • Any criminal histories of either parent.

     

    In Georgia, children who are 11 or older may state a preference as to which parent the child wishes to live with. At that age, the child’s choice of the custodial parent is non-binding upon the court, but, once a child reaches the age of 14, the child’s choice will be honored unless the judge determines that it is not in the best interest of the child.

    Contact an Atlanta Child Custody Attorney

    Child custody battles can be complicated and you will need competent representation in your corner to ensure that your side of the story is heard. To schedule a free consultation and case evaluation with a child custody attorney, call Mitnick & Associates today at 770-408-7000 or send us an email through our online contact form. We serve the entire Atlanta metro area, including Alpharetta, Roswell, Cumming, Johns Creek, and Milton.