I have written previously and often about the Shared Parenting Bill pending in the Georgia General Assembly, HB 369. This bill was the result of a study committee which was created by HR 1555 in 2006. The committee was charged with the task of investigating whether shared parenting might be the best custodial situation for all children of divorcing parents.
The committee was made up of Rep. Tom Rice, Chairman, Rep. Mark Butler, Rep. Earl Ehrhart, Rep. Ed Lindsey, and Rep. Judy Manning. They met on at least three occasions, in September and October 2006 and the report was issued on December 31, 2006.
I have obtained and reviewed the Study Committee’s Report. The entire text of their report appears below. It outlines the reasoning behind the authors of HB 369 and the factors they want the courts to consider in making custody decisions.
I will continue to provide posts about the details and status of the bill as it proceeds through the legislative process. As of today, the bill has been passed out of the Judiciary Committee but has not yet been voted on by the House.
For years there have been efforts to bring change to the child custody laws here in the state of Georgia. The committee was designed to review the situation in Georgia to see if any changes were needed.
The committee’s desire is to see children benefit as much as possible from the input and parenting of both parents. Where one parent has sole custody, there is the possibility that over time the non-custodial parent will begin to feel alienated toward the child and will begin to withdraw from a relationship with the child. The resulting alienation can produce severe trauma in the child’s life. The same can be true as well where one parent has physical custody, both parents have joint legal custody, but one parent makes all the decisions. When a parent is or can be actively involved in the child’s life then the relationship can be better, especially where both parents have an interest in the child’s life.
The best interest of the child is that both parents work together to parent their child. The recommendations of the committee seek to provide a balance and to allow those parents who want to have further involvement in the lives the children, the opportunity to do so.
The Committee scheduled three meetings over the course of two months and heard public comment from all interested parties. These meetings took place September 25, October 3, and October 26, in Atlanta. Testimony was presented by various individuals and groups interested in child custody issues. The meetings were set up so that testimony in favor of making changes to the current law was heard at the first meeting on September 25fh, with testimony given on October 3, by those in favor of the law remaining the same. The meeting on October 26 gave those who had not had a chance to speak, to do so.
Joint Legal Custodv
One way to try to include the non-custodial parent or secondary custodian in the decision making regarding their child is for the parents to have joint legal custody. The law currently allows joint legal custody to be awarded, and in most cases it probably is awarded. OCGA 19-9-6 states, "’Joint legal custody’ means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions." However, it appears that normally the chdd custody order provides that the primary custodian has the "tie-breaker" vote when the parents are not able to reach an agreement. As a result, the non-custodial parent might be able to voice their opinion, but it is no more than that, an opinion. Without a feeling of being able to direct the actions of their child, they can begin to feel powerless and that they have no control over what their child is doing.
The committee recognizes that there must be someone who makes a final decision when an agreement cannot be reached. The committee would encourage judges to divide the major decision making between the parents so that each would feel that they are involved in the lives of the children. The areas that could be divided between the parents would be issues involving the education of the child, extra curricular activities, medical decisions, religious upbringing, and any other area. The court in Frazier v. Frazier, 280 Ga. 687, 631 S.E.2d 666 (2006) ruled that it was within the court’s discretion to divide the decisions between the parents.
A statute would require judges to put into writing the reason split decision making between parents would not be possible. The decision they make should be based on the best interest standard.
Judges Orders Regarding Child Custody
The judge’s order regarding who has child custody should include "findings of fact and conclusions of law". To foster a continued relationship between the non-custodial parent and the child, it is important that the parent be able to interact and be involved in the child’s life. By requiring the judge to list and explain the reasons in their order for the custody decision, the non-custodial parent is presented with an opportunity to make positive changes to allow them to be in a position to be a greater influence on their child. Often the parent who does not get custody is frustrated because the decision was based on the "best interest standard", but they do not know in detail why the judge decided against them.
A statute would require judges to put into writing within 30 days the "findings of fact and conclusions of law" upon which custody was decided.
Best Interest Standard
The statute regarding the standard used to decide child custody states: "
The court hearing the issue of custody, in exercise of its sound discretion, may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child or children should be awarded. The duty of the court in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness and to make its award accordingly."
The language is general, and if the judge is to list specific reasons in the order as to why custody is awarded to one parent over the other, it would be better to list specific factors to be evaluated by the judge as he or she made the decision. By having specific factors, it should be easier for the judge to put the rationale behind the custody decision in writing. The best interest standard would have the following factors to be considered:
"(1) The love, affection, bonding, and emotional ties existing between each parent and the child;
(2) The capacity and disposition of each party to give the child love, affection, guidance and to continue the education and rearing of the child;
(3) Each parent’s knowledge and familiarity of the child and the child’s needs;
(4) 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;
(5) The degree to which a parent has been the primary caregiver;
(6) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(7) 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;
(8) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
(9) The mental and physical health of each parent;
(10) A parent’s involvement, or lack thereof, in the child’s education, social, and extracurricular activities;
(11) Each parent’s employment schedule, and the related flexibility or limitations if any, of a parent to care for the child;
(12) The home, school and community record and history of the child, as well as any health or educational special needs of the child;
(13) Each parent’s past performance and potential for future performance of parenting responsibilities;
(14) The relative willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
(15) Any recommendation by court-appointed custody evaluator and/or guardian ad litem;
(16) Any evidence of domestic violence or sexual, mental, or physical child abuse, or criminal history of either parent;
(17) Any evidence of substance abuse by either parent;
(18) Any other factors that the court considers to be relevant to the custody of the child."
With this as a framework, the judge would be able to list the reasons why one parent was not made the primary custodian.
The statute would be changed to include the language listed above.
The right of a child 14 or older to select the custodial parent
The code currently allows a 14 year old child to select the custodial parent. The only way the judge can keep from changing the child’s election is if the parent is found to be unfit. A parent is rarely found unfit, so the code should instead focus on what is in the best interest of the child. Testimony was presented that as the child nears the age of 14, a "bidding war" can ensue with both parents offering things to entice the child to remain in their custody, or to become under there custody. This is a decision that should not be placed on a child because they are not yet adults, and may not have their best interest in mind. Children are intelligent enough to know that they can use the situation to their advantage to get what they want. One judge in testifying before the committee noted how in one case in which he presided, the parents were helpless to discipline the child because he continually threatened to have the custodial parent changed.
The committee thinks the decision making regarding custody of a child should be left to the discretion of the judge and be based on the best interests of that child.
The statute would be changed to remove the right of a child of any age to select the custodial parent. Instead their input would be taken into account by the judge, but the best interest of the child would be the controlling factor. When there was a motion for modification, the child could express their desire for which parent should be the primary custodian, but the desire of a child shall not, in and of itself, constitute a material change of conditions or circumstances in any action seeking a modification or change in the custody of that child.
Guardian Ad Litem Report
Judges are limited not only by time, but also by the people they can speak to in order to get the information they need to make a decision about what might be in the best interests of the child. The cases that appear before the judge typically involve high conflict cases where the parents are not able to agree or work together when it comes to the children. In cases where the parties can work together, they typically come to an agreement between themselves.
Guardian ad litems would be a useful tool for the judge to utilize. They are able to take time to talk to the child, teachers, and any other interested party. A guardian ad litem’s report would contain information that enable the judge to determine the best interest of the child based on the factors that would be introduced.
A statute would be enacted that would require a guardian ad litem report to be filed with the judge in a contested custody case at some point before the final hearing is held. It would be in the judge’s discretion to determine when the report should be submitted before the final hearing.
A parenting plan is a form that is submitted either together by the parents or separately by them in which they list a visitation/ physical custody schedule. It lists specifically which days during the week the child will reside with which parent, which holiday will be spent with each parent, and any other detail regarding the living arrangements or transportation of the child.
The parenting plan would give further assistance to the judge by allowing them to see what type of plan the parents could agree on. The judge could use the plan to get the parents to try to agree on a custody arrangement. The intent is to foster cooperation between the parents for the sake of the children. At times an understanding between the parties that if they fill out separate forms the judge could use their form to give custody to the other parent could be used to move both parties toward a more equal time between them. At all times, the judge must measure the parenting plan against the best interest of the child.
The statute would require a parenting plan to be submitted before the final hearing in a contested custody case, but it is within the judge’s discretion to determine when it must be submitted in the process. The court should provide a parenting plan form to the parents. A sample parenting plan form should be provided by the legislature to the courts for their use.
The committee heard testimony that some parents would like to agree to use arbitration to settle disagreements between themselves. An arbiter would listen to both sides and make a determination as to how the parents should proceed with their dilemma. The problem is that currently an agreement to go to arbitration is not enforceable under current code. The judge must have the final decision making ability in custody cases.
The committee would recommend that a statute be introduced that would allow parents to agree to binding arbitration when they cannot agree on a decision. They should be allowed to select their arbiter and decide what decisions can be decided by the arbiter.
There are times when one parent will continue to bring actions against the other parent for no other purpose than to antagonize or "punish" them. Actions such as these can put a financial drain on the parent that has to defend these actions. One way to preclude actions such as this is to give the judge the discretion to award attorney’s fees to the party that succeeds. The judge would be able to decide if they were needed, and if the circumstances merited the award of attorney’s fees.
A statute would give judges the discretion to award attorney’s fees in cases involving child custody.
Right of direct appeal
There were those who testified in the committee hearings that there is ambiguity in some areas of custody law and that there should be more case law to address those issues. It is also possible that there are judges who are not following the legislature’s preference for a relationship between the parents and child as close to equal as is possible under the circumstances. A way to provide more case law and to keep the judges accountable is to allow for the right of direct appeal in child custody proceedings. The example was given that cases involving an amount over $1 0,000 are directly appealable, so cases involving something as important as child custody and issues relating to it should be appealable as well.
FURTHER RECOMMENDATIONS OF THE COMMITTEE
Child Support Commission
During the course of the committee meetings and the study process, the committee became aware that there was a lack of data in Georgia regarding the number of divorces where custody is involved. The Child Support Commission is gathering data already, and the committee would recommend that their duties expand to gather data on the number of divorces involving child custody, the type of agreements made between the divorcing parties, and other data that would prove helpful to make a baseline to determine how the changes are implemented.
Studv Abuse Claims
Testimony was presented during the committee meetings about how false claims are at times used to try to gain leverage in custody proceedings. Testimony was also presented that in numerous cases, abuse is not reported because of fear on the part of the one who was abused.
The committee would urge that a study be made to determine the amount of abuse cases that might be false which are used for the purpose of gaining an ‘edge’ in the proceedings. The actions of attorneys in using the claims should also be studied. Just as attorneys are gate keepers for frivolous litigation, they should be gate keepers for frivolous claims regarding abuse. Sanctions should be utilized where they actively propose a false claim for the purpose of giving their client a better change of gaining custody.
Governmental/ Quasi-Governmental Definitions of Custody
There may be times where hospitals and schools limit the amount of information that a non-primary custodian can access. The limitation may exceed that to which the parent has the legal right to view. Schools may prohibit a parent from visiting the student at school when a judge has ruled that it is allowable.
The committee would recommend that these entities examine their policies to make sure that legal access is not prohibited where it is allowable. The committee recognizes that each situation is different, but would suggest a policy that allows broad access to the parents, with the ability to prohibit contact if prohibited in a court order.
Judicial Oualifications Commission
The committee would request that the Georgia Supreme Court add custody decisions to the list of areas that can be examined for judicial misconduct by the Judicial Qualifications Commission. Currently, rulings involving, child support, custody and visitation are not examined as judicial misconduct. The committee would like to make sure that judges are doing the best they can to follow the intent of the legislature in child custody cases.
1. Require judges in the custody order to write out why it was not in the best interest of the child to order joint legal custody with the parents dividing the decision making for the major areas in the child’s life.
2. Require the judge to within 30 days of the final hearing write out "findings of fact and conclusions of law".
3. List specific factors for the judge to use in determining the "best interest of the child".
4. Remove the ability of a child to determine the custodial parent.
5. Require a guardian ad litem report be presented to the judge in contested cases before the final hearing.
6. Require a parenting plan be submitted in contested cases before the final hearing.
7. Allow the parties to agree to seek binding arbitration when an agreement cannot be reached.
8. Give the judge discretion to award attorney’s fees.
9. Allow a right of direct appeal in custody cases.
1. Expand the Georgia Child Support Commissions responsibilities to include gathering data on child custody decisions.
2. Study claims of abuse to determine if some are used for leverage.
3. Study whether or not governmental or quasi-governmental entities prohibit acceptable access for a parent.
4. Encourage the Georgia Supreme Court to allow the Judicial Qualifications Commission to add child custody, support and visitation decisions to the list of rules that could be judicial misconduct.