Child Custody

How Is Child Custody Decided In Georgia?

Child custody is decided in a few ways. The best way to determine the custody arrangement is to have the parents agree among themselves or through mediation.  If the parents can’t come to an agreement, the court will decide what happens to the children.

Mediation and Child Custody

During the divorce mediation the parents work out an agreement about visitation, custody, and child support. They leave the mediation with a document called a Parenting Plan that is filed with the court. The judge will typically sign off on the parenting plan and the parents will live by the agreement.

Court and Child Custody

When custody is decided in court, each party presents his or her own arguments about why they want the specific custody or visitation schedule that they desire. Then the judge considers the child’s best interest and decides what the custody and visitation schedule will be. The court will prescribe any child support payments based on the the child support calculator for Georgia.

The judge may also appoint a “guardian ad litem”, an attorney or other representative whose job it is to represent the best interest of the child, or a custody evaluator to meet with the family and make recommendations to the judge.

The judge will consider such factors as:

  • the bond between the parent and child
  • the length of time the child has been living in his or her current home
  • any evidence of family violence of abuse
  • the ability of each parent to provide food, clothing or shelter
  • the mental and physical health of each parent
  • the ability of each parent to meet the child’s educational needs
  • each parent’s involvement in the child’s educational, extracurricular, and social activities

What Type Of Custody Decisions Need To Be Made

When parents are separating, there are two types of custody that need to be decided in Georgia:

Physical Custody: Who the child will live with

Legal Custody: Who will have the right to make major decisions about the child (e.g., decisions regarding healthcare, education, religion, and extracurricular activities).

Physical and Legal custody can be awarded to one parent or they each can be joint where they are shared by both parents. Child custody is one part of what makes up the Parenting Plan document. This document details who has legal and physical custody, or whether there is joint custody of both. It also explains which parent will have custody of the child each day and each evening, the holidays, and your child’s school vacations.

The parenting plan will also define who spends time with the child during his or her birthday, on Mother’s Day, Father’s Day, etc. The parenting plan is either created by both parents, agreed upon during a mediation session, or by a judge during litigation.

Example Parenting Plan

What If We Are Not Married? Who Gets Custody Then?

In Georgia, unfortunately, a father’s rights are not automatically realized if he is not married to the mother of the child. In this case the mother and father can voluntarily sign an acknowledgement of legitimation, or the father has to file a legitimation action in court. Once the father has been legitimized, he can then ask for custody and visitation rights.

Important: in Georgia a father can be ordered to pay child support even if he hasn’t been legitimized.  Paying child support does not automatically grant custody or visitation rights. To gain child custody or visitation, a father needs to complete the legitimization process.

FAQs about child custody

Do judges always favor the mother getting custody?

No, in Georgia, both parents are seen as equal in terms of being eligible to receive custody. The judge looks at what would be in the best interest of the child, based on a variety of factors, but it does not involve the gender of the parents.

When can children decide who they want to live with?

When children are 11 years old they are able to state a preference for who they want to live with. The judge will take this into account, but has complete discretion over who the child lives with. Once a child is 14 their choice will be honored by the judge unless there are extenuating circumstances.

Do I have to pay child support if I don’t have custody?

No. Even if you have your child 50% of the time you may still end up paying child support. Child support is based on the difference between the two parent’s incomes. If your income is higher than your ex-spouses you will most likely have to pay child support. Visit the Georgia Child Support Calculator and perform the calculations based on you and your ex-spouse’s income to get an idea of what your child support payments might be.

What if something changes and I want to change my parenting plan?

You can change your parenting plan every two years unless there is a significant change in circumstances. If there is a significant change in circumstances you can petition the court to change the arrangements in the parenting plan.

My income or my spouse’s income has significantly changed, and I believe the child support payments should change. How can I modify this?

You typically can only modify the child support payments every two years. However, if there is a significant change in income such as a promotion, new job, or job loss, you can petition to have it modified before the two year period is up.

When will my child support payments end?

The child support payments end when either of the following happens:

  • when your child turns 18
  • if still in school at age 18 – when your child finishes high school (up to age 20)
  • your child gets married, is emancipated, or dies