When you file for divorce in Georgia, the court decides a number of issues before granting your decree, including custody. This means the court will determine who your child will live with and whether you or your spouse will have the right to make decisions concerning her welfare. The court bases its decision on what is in the best interests of your child. If you don't want to deal with the uncertainty that comes with letting the court decide such important matters for you, Georgia allows you and your spouse to devise your own parenting plan.
Legal Vs. Physical Custody
Georgia recognizes two forms of custody: legal and physical. Legal custody refers to a parent's right to make decisions concerning the child's welfare, such as those involving health care, school and religion. Physical custody involves where a child lives. As part of the divorce, the court has the option of awarding either form of custody to one or both parents. Georgia courts often award parents joint legal custody, which means both share decision-making authority and they have equal access to their child's education and medical records. While physical custody might also be joint, Georgia courts often award one parent sole or primary physical custody. When this happens, the other parent is usually granted visitation rights.
Best Interests of the Child
Georgia courts consider the best interests of the child when making custody determinations. The judge will evaluate several factors, including which parent has historically been the child's primary caretaker during the marriage and the child's relationship with each parent and her siblings. Judges must also consider any history of substance abuse or domestic violence, and which parent will encourage and maintain the other parent's relationship with the child. Georgia is somewhat unique in that children 14 or older can choose the parent with whom they wish to live. However, this is not an absolute right. If the court finds the selection not to be in the child's best interest, it will make an alternative decision. The court will also consider the wishes of children 11 to 13 years of age.
You and your spouse have the option of establishing your own custody agreement if you don't want to let the court make the decision for you as part of your divorce proceedings. Your parenting plan should explain which parent your child will live with, her visitation schedule with her other parent, transportation arrangements, where she will spend holidays and vacations, how you and your spouse will resolve disagreements, and rules for maintaining contact with your child. After you've drafted it, you can submit your parenting plan to the court for review. Upon approval, the court will incorporate the plan into your divorce decree and it becomes binding on both you and your spouse.
If circumstances change after your divorce decree is issued, Georgia law allows you to go back to court to modify your custody arrangement. The change in circumstances must be substantial and it must affect the best interests of your child. It cannot have existed at the time your decree was issued. Common examples include parental relocation, behavioral problems with the child, job loss or change, or parental conduct that puts the child at risk. It can also involve an older child who now wishes to live with the other parent.