GA Law on Going Back to Court for Custody

by Shannon Johnson

Spending time with your child is one of parenting’s simple joys. Losing custody or having a custody order that you do not agree with can be a frustrating experience. However, a court’s decision regarding custody is not necessarily permanent. Under Georgia Code Sec. 19-9-3(a)(1), the law does not have a preference in favor of either parent, or for a particular type of custody. No matter what, a change of custody must be in the best interests of the child. Under certain circumstances, parents can modify custody in Georgia courts by filing appropriate paperwork and meeting state law requirements for a change of custody.

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Modification Standards

Either parent can seek to modify custody by filing a petition for modification of custody. The petition must state that a significant change of circumstances that substantially affects the interests of the welfare of the child in a material manner has occurred. A parent will have to prove this by fresh, recent and relevant evidence.

Evidence You Need

Parents must show that there has been a material change in the circumstances surrounding the minor child, for a judge to change a custody order. Changes considered to be material include: not allowing another parent to visit according to the parenting plan, moving a child out of the state, parent marrying a spouse with a criminal history of child molestation or abuse, or a parent becoming addicted to drugs. Examples of evidence that courts have found to be insufficient in proving a substantial change in a child’s welfare include: remarriage, getting engaged, losing a job, denial of visitation twice and improvements in health.

Best Interests of the Child

Judges are required to look at the best interests of the child when deciding whether or not to change custody. According to Georgia Code sec. 19-9-3 (a)(3), the following factors should be considered when determining the best interests of the child: love and affection between the parent, child and any half or step siblings; the capacity of one parent to give the child necessary love, affection, and education; a parent's first hand knowledge of the child; the capacity to provide the child with food, clothes, health, and other day-to-day needs; a parent’s potential for providing a nurturing home environment; the mental and physical health of the parent; a parent’s work schedule and flexibility; the school and community history of the child; and past parenting performance. Also considered is whether or not there is a history of violence, abuse, a criminal history or evidence of substance abuse. It is important to note that one parent being behind in child support is not a defense to a custody change, but judges can use failure of child support in determining whether a change of custody is in the best interest of the child.

Choice by Minor Child

Children between the ages of 11 and 13 can let the judge know their choice when it comes to which parent to live with. Judges will have to take the minor child’s wishes into consideration, but the parent seeking a change will still have to prove that the change is in the best interests of the child. A judge will place a heavier weight on the wishes of a child over 14 years of age. If a child over 14 does not want to change custody, then the custody change might not happen.