Divorce Law & Visitation Statutes in Georgia

By Beverly Bird

Although there may be no such thing as a perfect divorce, most states attempt to achieve that ideal, at least where children are concerned. Georgia is no exception. The state's legislative code makes frequent mention of the importance of preserving the parent-child relationship, and it does not allow parents to divorce unless a detailed parenting plan is in place first. When parents can't agree to a parenting plan, a judge will order one.

Georgia Custody

All states recognize variations of joint and sole custody. In Georgia, joint custody means that both parents have an equal right to make important decisions on behalf of their children and share parenting time, although not necessarily on an exact 50-50 basis. Sole custody means that only one parent retains these rights post-divorce. However, when one parent has sole custody, the other parent typically has visitation.

Best Interests Factors

When a Georgia court must decide custody and visitation because parents can't agree on a parenting plan, judges fall back on a statutory list of factors based on the best interests of the children. Section 19-9-3 of the state's legislative code lists these factors in detail. Georgia is somewhat unique in that it allows children who are 14 or older to decide which parent they want to live with. Provided the parent isn't unfit and it's not in the child's best interests to place him with the other parent, the court is obliged to order custody accordingly. With younger children as well as older children who don't express a preference, Georgia's best interests factors lean toward consistency and stability in their lives. Judges will consider which parent has typically been most involved with the child's educational and extracurricular activities, as well as the closeness of the child's relationship with each parent. The state also places an emphasis on which parent is most likely to facilitate the child's contact with the other parent.

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Interference With Custody

When custody and visitation terms are incorporated into a court order or decree of divorce, Georgia law takes them seriously. Under the terms of Section 16-5-45 of the state's code, interference with custody is a crime. If you have visitation with your child and refuse to return him as scheduled, you can be charged with a misdemeanor offense that carries possible jail time of up to five months, a fine up to $500 or both. The stakes are even higher if you repeatedly interfere with custody or leave the state with your child. If you're not receiving time with your child as scheduled, you can petition the family court for an order of contempt against the other parent. Child support and child visitation are two separate issues in Georgia; thus, the state does not allow a parent to withhold parenting time just because the other parent has fallen behind with his support payments. Furthermore, a parent can't unilaterally change the visitation schedule without first petitioning the court and getting approval.

Unfit Parents

When family violence is an issue – and it's proven – Georgia courts have the power to adjust custody and visitation schedules accordingly. If the violence is aimed at the other parent, a judge can prohibit contact between the two parties and order pick-up and drop-off times and locations accordingly. If a parent has committed or threatened violent acts against a child, the judge can order supervised visitation in which another responsible adult is always present. A judge can prohibit overnight visitation, order the offending parent to attend and complete counseling, and even order abstinence from drugs or alcohol for 24 hours preceding contact with the child, as well as during visitation.

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Family Laws on Sole Custody in the State of Georgia


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Factors Used in Determining Child Custody

If you can't reach a custody agreement with your spouse, divorce means putting your family in the hands of a trial court judge. The court has no intimate knowledge of your family to guide a custody decision, so it must fall back on a statutory standard provided by law. This is called the "best interests of the child," and the different states have different lists of factors that a judge must consider in deciding just what the best interests of your child are.

If You Get Divorced in Georgia Can You Move to a Different State With Your Kids?

Before 2003, Georgia was one of the more lenient states when allowing a custodial parent to move away or relocate with her children post-divorce. The courts put the burden of proof on the non-custodial parent to convince a judge that such a move would actually be harmful to the children, and this could be difficult to establish. The Georgia Supreme Court reversed this position in the case of Bodne v. Bodne in 2003. At the time of publication, the custodial parent has the burden of proof to establish that a move would improve the children’s lives more than the separation from their other parent would harm them.

Smoking & Child Custody

All too often, custody laws boil down to where you live. What is considered OK in one state may be held against you in another. Smoking cigarettes is frowned on in at least 15 states, according to the Colorado Divorce Information website. If you are struggling with custody issues as part of your divorce, your tobacco habit might not cost you custody by itself, but it can be a factor in tipping the scales toward giving primary custody to your spouse, and it may even affect your visitation rights.

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