Judge Ellen McElyea is a graduate of the University of Georgia Law School, and practiced law in Canton for a number of years. In 2000, she became judge of Cherokee County Juvenile Court, where she served until she was appointed to the Superior Court of the Blue Ridge Judicial Circuit (Cherokee County) by Governor Sonny Perdue in 2007. She wrote the following article, which appeared in the Cherokee Tribune:
This year, the Georgia General Assembly enacted legislation that makes several significant changes to Georgia’s child custody laws.
Because approximately 65 percent of the civil cases filed in Cherokee County Superior Court are domestic relations cases, these changes will have a considerable effect on the families and children of Cherokee County, and on the work of the court.
The underlying policy of the new laws, according to the General Assembly, is to reflect Georgia’s policy of assuring "that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or resolved their marriage or relationship."
The requirement of a written parenting plan brings Georgia in line with national trends. The goal is an important one: to encourage divorcing and divorced parents to give real consideration to the ways that divorce impacts their children, and to make well thought out plans for their children’s well-being.
Beginning Jan. 1, 2008, parents must file a parenting plan in any case in which child custody is an issue (except in cases where a family violence temporary protective order is sought.). Currently, there is no specific form required for the parenting plan, although the Georgia Supreme Court is expected to adopt one after the first of the year.
The parenting plan is required to be comprehensive. It should acknowledge the importance of a child having a continuing relationship with both parents. It must address the legal custody of the child, a plan for the child’s physical care, including holidays and school vacations, and transportation for the exercise of parenting time. The plan must acknowledge the importance of each parent having access to records regarding school, health care, extracurricular activities and religious training, and it must also designate, as between the parents, who has responsibility for making major decisions about the child.
The parenting plan may be filed by the parents jointly, or each party may file a separate parenting plan as a proposal to the court. If only one parent submits a parenting plan, the court may adopt the parent’s plan if the court finds that the plan is in the child’s best interest.
Any parenting plan is subject to acceptance or rejection by the court based on the court’s finding of the child’s best interest, health and welfare.
The new law outlines a list of factors a judge must consider in determining whether or not to accept a parenting plan, or in making custody award in general. All of these considerations have been taken into account by judges for many years, but this is the first time that Georgia law has specifically articulated them.
Among these, the law expressly requires the judge to consider the willingness and ability of each parent to facilitate and encourage a close and continuing parent and child relationship between the child and the other parent, consistent with the best interest of the child.
One new provision allows parents to resolve issues related to child custody through binding arbitration. The parties may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter’s decision will be final unless a judge makes a specific finding, based on evidence presented at hearing, that under the circumstances the arbiter’s award would not be in the best interest of the child.
Finally, in another significant change in the law, in all custody cases in which the child has reached the age of 14 or older, a child shall have the right to select the parent with whom he or she desires to live, and this selection is presumptive unless the parent is determined not to be in the best interest of the child.
Previous Georgia law permitted a child 14 or older to make an election, which was binding, unless the parent selected by the child was unfit. Given the difficult standard of proving a parent unfit as a matter of law, the former law gave a 14-year-old child virtually free rein to pick the parent of his or her choice. The new law is a restriction on the choice of a child fourteen or older, requiring that the child’s choice must be in his or her "best interests."
Parents of minor children who are involved in a divorce should understand the difficulty in navigating the law regarding child custody and support. A judge cannot give legal advice, and cannot assist any party in complying with the parenting plan requirement. Parties will be required to do even more "homework" in preparation of court.
To make sure that the end result is an order in their children’s best interest, divorcing parents will find themselves in critical need of legal advice from an experienced domestic relations lawyer.
SOURCE: Cherokee Tribune