Custody determinations represent an additional step in the divorce process for parents of minor children. Georgia courts, like courts in all states, base custody decisions on the best interests of the child -- and consider several factors to determine what is best for a child's well-being. Once an initial order is in place, under certain circumstances, the court will modify that custody order.
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Overview of Custody
Georgia recognizes two types of custody: legal and physical. Legal custody refers to the authority to make major decisions regarding the child, such as religious affiliation, education and healthcare. Typically in Georgia, unless a parent is deemed unfit, the court will award joint legal custody, meaning both parents will share in making decisions for the child. Physical custody refers to where the child will live. Georgia has moved away from focusing on the concepts of custody and visitation in favor of "parenting time." This often results in an arrangement whereby parents spend close to equal time with the child. However, even with this type of arrangement, the judge will name one parent as the “primary custodian.” This is usually the parent with whom the child lives on a regular basis and is the official address on the child's school and medical records. The parent who does not have primary custody receives parenting time with the child. The primary custodial parent must adhere to the parenting time schedule -- and refrain from interfering with the other parent's right to see his child.
When determining what is in a child's best interest, the court is required to consider several factors outlined in Georgia law, including the home environment offered by each parent, past performance of each parent in caring for the child, and the knowledge and ability of each parent to care for the particular needs of the child. In the past, children over the age of 14 could automatically choose their custodial parent; however, at the time of publication, the courts have more latitude in making that decision. Also, children between the ages of 11 and 13 now have the legal right to make their custodial preferences known to the court. A judge has wide discretion in deciding custody, and each factor need not be given equal weight in the analysis.
Parenting plans are generally required as part of the process to establish custody in Georgia. A parenting plan is a proposal to the court detailing where the child will spend every day of the year, including holidays and vacation days. The plan also needs to specify transportation arrangements and drop-off points when a child leaves one parent to visit the other, as well as how a parent can contact the child when he is with the other parent. If both parents are in agreement, they can jointly file one parenting plan with the court. Alternatively, parents can file separate parenting plans. A judge will carefully consider the submitted plans and make necessary changes to ensure the plan he incorporates into his custody order promotes the child's best interests.
Either parent can request a modification to an existing custody order. The parent seeking to modify a custody order must show that a significant change in circumstance has occurred since the order was issued -- and that a modification is in the child's best interest. For example, moving out of state might qualify as a change in circumstances, but the change must also benefit the child. If the court finds that the change is disruptive to the child, a judge could decline to modify the order, or even award sole custody to the other parent.