Before a divorce can be granted, the issues surrounding the custody of all of the children of the marriage must be determined. Child custody issues can also arise separate from divorce between biological parents who are separated but not divorced or between parents who have never been married to each other.
A relative who is not a biological parent cannot obtain custody of a child unless the court determines, by clear and convincing evidence, that it would be in the child’s "best interest" to live with a relative other than he biological parent. In Georgia, it is no longer necessary to prove that the parent is "unfit" before a relative can be awarded custody.
The court will award custody by using the "best interest" of the child standard. Under this standard, the courts will consider several factors, including:
- The wishes of the parents, which should be given special weight (assuming the parents are determined to be fit);
- the wishes of the child (in Georgia, a child who is 14 years old or older generally has the right to select the parent with whom he desires to live subject only to a determination that the parent is fit) (as of July 1, 2000, the Court must also consider the wishes of a child between the ages of 11 and 14 as to which parent they wish to live with, although this is not binding on the court and other considerations could override the child’s wishes).
- the interaction of the child with parents and siblings;
- the child’s adjustment in the home, school and community; and
- the mental and physical health and stability of the individuals involved.
In determining the "best interest" of the child, the court will sometimes appoint a Guardian Ad Litem to investigate the child’s situation and make a recommendation to the Court. The Guardian Ad Litem has a duty to act on behalf of the child, advocating the child’s preference if the child is old enough to express a preference. The Guardian Ad Litem’s recommendation is not binding on the court, but the court will usually take the recommendation into consideration.
The court may award "joint custody." The court may consider the agreements of the parties, if the agreement is in the best interest of the child. If a child is 14 years old or older, the child shall have the right to select the parent with whom he desires to live. The child’s selection will be controlling unless the parent is not fit.
It is now the policy of virtually all states to encourage joint legal custody of children whenever practical . Joint legal custody does not necessarily mean a 50:50 time sharing of the children, although some parents are very creative in working out a parenting plan doing just that, or at least close to it. Joint legal custody also does not mean that there won’t be any child support ordered. Joint legal custody is in reality is more a 50:50 sharing of the responsibility for decision making about the things that affect the lives of the children.
In the most ‘common’ joint custody plan, 1 parent has primary physical possession, and the non-custodial parent has the standard visitationof basically every other weekend, alternating holidays, and an extended period in the summer, and pays child support based on the Georgia State Child Support Guidelines. In the real world, joint legal custody is typically a parenting plan that keeps both parents actively involved in all of the major decisions impacting the child and gives the non-custodial parent a greater role in the lives of their children.
In determining custody, the court will consider the age and gender of each child, whether there are siblings, the relationships with the parents, and which parent has been the primary caretaker during the marriage. The court will also consider which parent, if given custody, will help the child maintain a healthy relationship with the non-custodial parent. The court almost always awards visitation to the parent not given custody. However, the court may consider family violence in making a decision about whether to award visitation to the non-custodial parent. If the parties are able to reach an agreement about custody and a visitation schedule, the court will usually approve the agreement if it is in the best interest of the child.
Orders providing for the support and custody of children are subject to modification after the divorce if there is a substantial change in the circumstances of the parties i.e. an increase or decrease in income or a change in the living arrangements of the children.
Depending on what county you are filing for divorce in, those families who have children will be required to attend an educational seminar as part of the adjudication process. For instance, Fulton County has a required education program entitled "Seminar for Parents of Minor Children" that address issue specific to "families in transition" which includes parties involved in divorce, separate maintenance, paternity, change of custody, visitation, legitimation, and other domestic relations matters involving children. It is a four hour program and both parties involved in the action are required to attend within thirty (30) days of the Court Order being served upon the Respondent/Defendant. There is a $30.00 non-refundable fee.