Child custody can be the most contentious part of a divorce. Emotions are strained while each side struggles to determine and advocate for custody, decision making authority, and parenting time. A court action to determine custody can be filed as part of a divorce or it can be filed separately where no marriage existed. However, a Legitimation proceeding may be required in conjunction with the Petition for Child Custody where there is no marriage.
These factors include:
- The love, affection, bonding, and emotional ties existing between each parent and the child
- The love, affection, bonding, and emotional ties existing between the child and each of his or her siblings
- The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child
- Each parent’s knowledge and familiarity of the child and the child’s needs
- The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent
- The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
- The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems
- The mental and physical health of each parent
- Each parent’s involvement or lack thereof in the child’s education, social, and extracurricular activities
- Each parent’s employment schedule and the related flexibility or limitations, if nay, of a parent’s care for the child
- The home, school, and community record and history of the child as well as any health or education special needs of the child
- Each parent’s past performance and relative abilities for suture performance of parenting responsibilities
- The willingness and ability of each parent to facilitate and encourage a close continuing parent-child relationship between the child and the other parent, consistent wit the best interests of the child
- Any recommendation by a court appointed custody evaluator or guardian ad litem
- Any evidence of family violence or sexual mental or physical child abuse or criminal history of either parent
- Any evidence of substance abuse by either parent
Custody of a minor child is typically divided between legal and physical custody.
Legal Custody of the Child
Legal Custody refers to the allocation of decision making authority between the parents regarding the important decisions related to education, health, extracurricular, and religious upbringing of the child. Decision making authority can be given to one parent, divided among the parents, or shared among the parents. When decision making authority is shared, often referred to as joint legal custody, some tie breaking mechanism is included to prevent deadlock if the parents cannot agree.
Physical Custody of the Child
Physical custody refers to under whose physical care the child is placed in. Traditionally, sole custody was granted to one parent while the other parent received visiting time with the child. In many places, the language of Georgia statutes and processes still reflects this approach. Today however, many people are exploring varying degrees of joint physical custody where the child is ensured more equal time with both parents. Sometimes this refers to complete 50/50 custody. Other times, it refers to having a primary and secondary physical custodian where liberal time is given to the secondary custodial parent. The parties should realistically look that their situation and determine what arrangements are in the best interests of their child.
An archaic and somewhat outdated term, visitation refers to the time the child spends with the non-custodial or secondary-custodial parent. Not only must the parties, or the judge, determine the week to week schedule, but also holidays, birthdays, vacations, and school breaks.
Modification to Child Custody Orders
When a change of circumstances necessitates it, a child custody order can be changed by filing a Petition for Modification. In a modification, the party can request a full change in custody or a change in visitation. A modification most commonly arises when one party is relocating, the needs of the child changes, substance abuse from one parent, or when violence or criminal activity is involved. The judge will again examine what is in the best interests of the child.