In Georgia, the court will make child custody decisions based on what is in the "best interest" of the child if the parents can’t come to an agreement. In deciding whether to grant sole or joint custody, the court may consider various factors, including:

  • The fitness, character, personality and general health of the parents
  • The wishes of the parents, if they are determined to be fit
  • The wishes of the child, after taking into consideration the child’s age and maturity
  • The ability of the parents to communicate with each other
  • The prior and continuing care the parents have given the child
  • Any history of domestic abuse

If there is a history of domestic abuse, the court will presume joint custody is not in the best interest of the child.

After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. It a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order, order makeup visitation for the time missed or order counseling or mediation.


Making custody decisions is always the most painful part of divorcing. Being clear about your options from the start may make tough decisions easier.

Types of Custody

  • Legal Versus Physical Custody

    Legal custody is the right to make decisions about your child, including:

    • Education
    • Religion
    • Medical issues
    • Discipline

    Physical custody is having the child physically present with you.

  • Sole Versus Joint Custody

    With sole custody, you alone have legal and physical custody of your child.

    In a joint custody arrangement, you and your ex-spouse share legal and/or physical custody of the child. This might mean:

    • Having the child spend a significant amount of time with each parent
    • Spending weekdays with one parent and weekends with the other parent
    • The child spending most of his or her time with one parent and visiting with the other parent on a regular schedule
    • The parents moving in and out of a home where the children live (called "nesting")

    Parenting Agreements

    Most states require divorcing parents to have a written plan outlining:

    • Where the child will live
    • Details of when the child will be with the noncustodial parent
    • Who will make parenting decisions and how
    • Where the child will be during holidays and school vacations
    • How vacation time with each parent will be determined

    Factors In Determining Custody

    If you and your spouse cannot agree on a custody arrangement, the court will likely make a decision based on the "best interests" of your child.

    Factors the court will consider in deciding what’s in your child best interest include:

    • Who is currently and has been the primary care provider for the child
    • The mental and physical health of both parents
    • Special needs such as medical care and psychological counseling your child may have
    • The work schedules and availability of each parent
    • Where any siblings will live
    • The support systems (family and friends) of each parent
    • The preference of an older child, such as a teenager
    • The cooperation level between parents
    • Any history of domestic violence between the parents

    What To Expect In Custody Litigation

    Laws and procedures vary by state, but you should expect the following in a custody lawsuit:

    • One of the parents files for a divorce and asks the court to decide custody
    • Both parents file paperwork detailing each parent’s plan for where the child would live, visitation schedules, and how decisions concerning the child would be made
    • The court will likely appoint an investigator, sometimes called a "custody evaluator" or "guardian ad litem," to interview the child, parents and potential witnesses such as family, friends and teachers, and make recommendations to the court regarding custody
    • The parents may be required to go to mediation, where a neutral third party will help the parents work out an agreement without going to court
    • The parents may be required to complete a short parenting course regarding parenting after a divorce
    • Attorneys for both parents may take "depositions" – formal questioning of witnesses under oath- to prepare for trial
    • Both parents will likely have to answer formal written questions under oath, called "interrogatories"
    • There will be a series of motions and hearings before the actual trial, to determine temporary custody and child support
    • At trial, the judge will hear from both parents and witnesses
    • The judge may make his or her decision at the conclusion of the trial, or may wait and send a written decision days or weeks after the trial has ended

    Fighting over your child is expensive, time-consuming and emotionally damaging to everyone involved, especially your child. But knowing your rights as you begin the process make help you make better decisions.