Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.
Subsection (a)(2) of OCGA section 19-9-3 provides that the judge hearing the issue of custody shall (no longer “may”) make a determination of custody of a child. As before, custody matters are not to be decided by a jury. The judge 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 should be awarded. The duty of the judge 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 and what will best promote the child´s welfare and happiness and to make his or her award accordingly.
The best interest standard has been the one applied by courts in Georgia before now, but the statute now provides a list of specific factors in subsection (a)(3):
In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
(C) 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;
(D) Each parent´s knowledge and familiarity of the child and the child´s needs;
(E) 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;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) 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;
(H) 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;
(I) The mental and physical health of each parent;
(J) Each parent´s involvement, or lack thereof, in the child´s education, social, and extracurricular activities;
(K) Each parent´s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent´s past performance and relative abilities for future performance of parenting responsibilities;
(N) The 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;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.