Family Laws on Sole Custody in the State of Georgia

By Beverly Bird

Except in extreme circumstances, Georgia courts usually will not award sole custody of children to one parent -- at least not officially. Section 19-9-3 of the Official Code of Georgia Annotated specifies that it is the state’s policy to ensure that children have frequent contact with both parents after a divorce or separation. However, the rest of the Code is riddled with provisions that tend to give one parent more rights than the other.

Combined Legal and Physical Custody

Georgia separates custody into two areas: legal and physical. A parent with sole custody has both kinds of custody: Her child lives with her with little or no physical visitation time with his other parent, and she has full decision-making authority without input from the other parent. Because the courts presume that contact with both parents best serves a child’s well-being, judges award sole custody to a parent only when contact with the other parent would harm the child. For example, if one parent has a history of abusing the child, the court will place physical custody with the other parent, with restricted visitation, and give her full decision-making authority as well.

Legal Custody

Legal custody defines which parent makes decisions regarding the child’s upbringing. Georgia officially leans toward joint legal custody, but Section 19-9-1 of its family law code gives one parent “veto power" over the other. When both parents have an equal right to make important decisions, they can easily reach an impasse if they disagree over an issue. Section 19-9-1 of the state’s Official Code mandates that when awarding joint legal custody, a judge must give someone tiebreaking control in instances when parents don’t agree. This is usually the parent the child lives with most of the time. Therefore, even when parents technically share joint legal custody, one parent often has the sole right to overrule the other parent when making major decisions regarding their child.

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Physical Custody

According to the terms of Section 19-6-15 of Georgia’s Official Code, even when parents share joint physical custody and their children live with each of them a fairly equal amount of time, judges must name one parent as “primary custodian.” This is usually the parent the child lives with on a regular basis. The parent who does not have primary custody receives parenting time and visitation rights. Because Georgia’s Code contains no language that specifically refers to the concept of joint physical custody, the primary custodial parent would technically have sole physical custody. Georgia is relatively unique among states in allowing a child over the age of 14 to decide which parent he wants to live with. Unless the parent he chooses is unfit, Georgia judges are legally obligated to honor a teenager’s wishes if he's 14 or older.

Unmarried Parents

When a child is born to unmarried parents, Georgia law states that the mother has sole custody unless and until the father establishes his paternity. However, the state's laws for establishing paternity are exceptionally lenient. A father needs only to openly acknowledge to the world that the child is his. When he does this, Georgia law gives him the right to seek custody or visitation.

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A Tennessee Divorce: Can an Abusive Husband Get Custody of the Children?

Tennessee law favors joint custody when couples divorce, but Section 4:1.04 of the state's code instructs judges that "in domestic abuse cases, joint custody is inappropriate." If a judge follows this rule and does not order joint custody after an abusive marriage, it's unlikely that he would give sole custody to the parent who made joint custody inappropriate through his abusive behavior. This would effectively reward him for committing the abuse.

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