Child Custody Issues in Georgia
Most child custody issues that come about as a result of a divorce in Georgia are determined under the authority of the Official Code of Georgia Annotated (O.C.G.A.) Title 19 Section 9.
The general rules which the Court will follow to make an initial award of custody in a contested case are found in O.C.G.A. 19-9-1. This code section allows the Court in all divorce actions where custody is an issue to look into all of the circumstances of the parties to determine the best interest of the children.
If family violence has been alleged by one spouse against the other, the Court will consider the safety and well-being of the child who may have been a victim of said violence.
This code section also allows a child who has reached the age of fourteen (14) to select the parent with whom he or she desires to live. The child’s selection will be allowed by the Court unless the selected parent is determined to be unfit.
If a child involved in a contested custody proceeding has reached the age of eleven (11), but not fourteen (14), the Court will consider his desire in making a custody determination even though his desire is not controlling upon the Court as it would be if the child was at least fourteen (14).
The Court may, in its discretion, appoint a “Guardian Ad Litem” (usually a neutral attorney from the legal community on an approved court list) to investigate the parents and the children and to advise the Court as to the “best interest” of the child or children involved. The Guardian Ad Litem acts as a representative of the children.
The Court is given wide discretion in contested custody matters. It may award full custody to the husband or wife, and visitation to the other spouse, or it may award some type of joint or split custody. It may also grant full physical custody to one spouse but award joint legal custody (which means joint decision making) to both spouses. For example, in the recent case of Walker v. Walker 248 GA App 177 (2001), a Court was found to have acted properly in awarding full physical custody to the father but joint custody to both parents.
O.C.G.A. 19-9-5 specifically allows parents involved in a divorce who reach agreement as to custody to present said agreement to the Court.
The Court will ratify the agreement and make it part of the Final Order and Decree of Divorce unless the Court specifically feels under the circumstances that the agreement is not in the child’s (or children’s) best interest.
Because of the great latitude given to judges in Georgia to decide custody matters with in their discretion, it is very difficult to win an appeal of any custody order. Parties to a divorce are advised to attempt settlement of these issues when possible to avoid the risk involved in any trial of these important issues.
Child custody disputes are never easy. They are not easy for the Courts, for the parents, and they certainly are not easy for the children. Because judges have a large amount of discretion and may be influenced by personal bias or beliefs, it is difficult to predict how a court will rule on custody issues. Therefore, settlement may be the best option for divorcing parents. However, even when considering an out-of-court settlement, parents should have separate legal representation to help ensure that their rights are safeguarded.
Daniel W. Mitnick & Associates, PC child custody cases are primarily handled by Daniel W. Mitnick, Senior Associate.