These frequently asked questions explain your options for changing an established custody or visitation agreement.
Under what circumstances can custody and visitation orders be changed within the state where they were obtained?
After a final decree of divorce or other order establishing custody and visitation (such as a paternity decree) is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") may be made without court approval. If one parent later reneges on the agreement, however, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is generally advisable to obtain a court’s blessing before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child.
If a parent wants to change an existing court order and the other parent won’t agree to the change, he or she must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.
What qualifies as a substantial change in circumstances?
Here are some examples:
Geographic move. If a custodial parent makes a significant move, or the move will seriously disrupt the stability of the child’s life, the move may constitute a changed circumstance that justifies the court’s modification of a custody or visitation order. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. If no agreement is reached, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.
Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent’s lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case.
SOURCE: Georgia Divorce Online
Once a court issues a final order in a family law case, the order is final. To request a change you must file a new case with the court. You should follow the terms of the original order until the court issues a new order. Even if you and the other party agree to a change, the change is not official until the court approves it in a court order.
Some things in a family law case are only changed in very rare circumstances. For example, property and debt division in a divorce generally cannot be changed. Paternity decisions generally are not changed. These kinds of orders can only be "set aside" if circumstances like fraud, duress or improper notice can be shown.
Some issues in family law cases are commonly changed. Child custody, visitation and child support orders are frequently changed by the courts. Still, the court follows certain guidelines to determine whether a requested change is proper.
(1) Child custody: In child custody modifications, courts look for a change in the child’s life or a change a parent’s life that "materially" affects the welfare of the child. The change can be positive or negative. If the reason for the change is based on a parent’s circumstances, you must also prove that the change affects the child, not just the parent. Also, the reason for the change should be something that has occurred since the final order was decided. It is possible to base a change of custody case on something that existed at the time of the original court case. However, you would have to show that the condition has worsened or improved "materially" since the original order was decided.
[Under current Georgia law (until January 1, 2008) w]hen a child is fourteen (14) years or older, the child can chose to live with either parent. Unless the parent can be shown to be "unfit", the courts will honor the child’s choice. In this case you do not need to show a "material" change of circumstances. When a child is twelve (12) years old, the child can tell the court which parent he or she wants to live with. In this case the court will consider the child’s choice, but will not necessarily do what the child wants.
(2) Visitation: Visitation can be changed if it is in the best interests of the child. You do not need to prove that there has been a "material" change in the child’s life or a parent’s life. Once the court grants a modification of visitation, you have to wait two (2) years to ask the court for another change. However, if you can prove that a material change of circumstances is the reason for the change, you don’t need to wait the two (2) years.
(3) Child support: Child support orders can be changed based on a change in the income or financial need of either parent. Child support can be changed based on the changing needs of the child. Sometimes if a child support enforcement agency is involved, either parent has the right to have the child support order periodically reviewed without going to court. Sometimes a parent can request a change in child support when there are major changes to the child support laws.
Modification of a court order in family law cases can be a complex process. If possible, you should discuss your case with an attorney or hire an attorney to represent you.
Some individuals do not have the desire or ability to hire a lawyer to represent them in a traditional fashion, but they may need legal help with a particular issue or portion of their case.
The Cobb County Bar Association’s Family Law and Younger Lawyers Sections have worked together to provide a number of attorneys who will offer specific, limited legal services at set rates. Information on this type of legal assistance will be provided to workshop participants.
This workshop will assist you with the following case types:
* Divorce * Paternity/Legitimation
*Contempt * Modification
Navigating through the legal system can be extremely difficult. Each case is individualized by its own set of facts; however, there are some basic rules that all cases must follow which this workshop will address.
No workshop can teach you everything you need to know about representing yourself in any legal action, but this workshop is designed to answer some of the basic questions you may have:
What information do I need in order to file?
Are there mandatory forms that I need?
How do I schedule my case for a hearing ?
What are the operating procedures of the Court?
Forms for these case types will be available for purchase at the seminar.
The cost for the forms are $15.00 per packet. Cash Only—Exact Change Required
For further information, please call the ADR office at (770) 528-1812.
|Thursday, November 8th, 2007
||6:30 p.m. – 7:30 p.m.
The location for all classes will be:
Cobb County Superior Court Building
(Building "D" 6th floor Jury Assembly Room)
30 Waddell Street
Marietta, GA 30090-9642
Driving Directions | Marietta Square Map
Parking is provided in the jury parking lot on the north end of Waddell St.
SOURCE: Clerk of Superior Court of Cobb County
The increase in divorce has its effect, directly or indirectly, on virtually every family in the country. The following information is designed to summarize briefly Georgia’s divorce laws.
Marriage is a civil contract which the state has an interest in preserving. Accordingly, the marriage relationship can be dissolved only as provided by law, by either a divorce or an annulment. It also may be altered by a decree of separation granted by our courts. In any case, there must be a proceeding in the Superior Court of the county in which the person seeking the divorce, separation decree or annulment must prove "grounds" (valid reasons prescribed by law).
What are the grounds for divorce in Georgia?
In Georgia there are 13 grounds for divorce. One ground is "irretrievably broken" (sometimes referred to as the "no-fault" ground). The other 12 grounds for divorce in Georgia are "fault" grounds.
What is a "no-fault" divorce?
To obtain a divorce on this basis (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary to show that there was any fault or wrongdoing by either party.
What are the "fault" grounds?
To obtain a divorce on one of the 12 "fault" grounds, one must prove that there was some wrongdoing by one of the parties to the marriage.
As an example, one fault ground is adultery. Adultery in Georgia includes heterosexual and homosexual relations between one spouse and another individual.
Another "fault" ground for divorce in Georgia is desertion. A divorce may be granted on the grounds that a person has deserted his or her spouse willfully for at least a year. Other "fault" grounds include mental or physical cruel treatment, marriage between persons who are too closely related, mental incapacity at the time of marriage, impotency at the time of marriage, force or fraud in obtaining the marriage, pregnancy of the wife unknown to the husband at the time of the marriage, conviction and imprisonment for certain crimes, habitual intoxication or drug addiction, and mental illness.
Is there a residence requirement for getting a divorce in Georgia?
Yes, one spouse must have lived in the state of Georgia for six months or Georgia must have been the last domicile of the marriage.
Must the husband and wife live apart when a divorce complaint is filed?
No, but the spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house, if they are not sharing the same room and/or not having a sexual relationship.
How does one file for a divorce?
The person seeking the divorce (the plaintiff) will file a document called a "complaint" with the appropriate Superior Court. This complaint includes information on the marriage including present living arrangements, children of the marriage, assets, debts, and the specific reason claimed for seeking a divorce. A copy of the complaint will be served on the other spouse (the defendant) by the sheriff.
Where does one file for a divorce?
A complaint for divorce should be filed in the Superior Court of the defendant’s county of residence or, if the defendant has recently moved from the state of Georgia, in the county of the plaintiff’s residence. This would be considered the domicile of the marriage. Upon the defendant’s consent, the complaint may be filed in the plaintiff’s county of residence regardless of whether the defendant has moved from the state of Georgia or not.
What should I do if I receive a complaint for divorce that my spouse has filed?
The spouse who receives the complaint should promptly consult a lawyer. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by filing an answer with the court. If an answer is not filed within 30 days, the right to contest the complaint may be lost.
Is there a way to live apart without getting a divorce?
A party who wishes to live apart permanently, but who does not want to get a divorce, may file a "separate maintenance" action. The spouses will remain legally married although living apart. The court may order that alimony be paid by one spouse to the other and the court may divide property between the parties.
What is an annulment?
Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is now void and was invalid from its inception. If there are children born of the marriage, an annulment may not be granted and the marriage may only be dissolved by divorce.
Must I go to court to get a divorce?
Not necessarily. Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property and custody and visitation of children. The agreement is presented to the court as a settlement agreement and, upon approval, made an order of the court. The court’s order, called a final judgment and decree, concludes the lawsuit. If the parties cannot reach an agreement, a judge or jury will resolve the issues. However, a judge always decides matters of child custody and visitation.
How long does it take to get a divorce?
If there is agreement between the parties, the divorce is considered uncontested. An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce. If there is disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take many months.
What happens while I wait to go to court?
Either of the spouses may request a temporary hearing. This hearing is not a final trial. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of property on a temporary basis until the final trial. The judge will issue a temporary order that applies only until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.
What is decided at final trial?
Questions of child custody and visitation are decided by the judge. The judge alone or a 12-person jury (if one of the parties has requested) will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony and certain findings concerning child support (gross income of both parties and whether any deviations from teh presumptive amount of child support are in the best interests of the child, and if so, what those deviations should be). At the final trial, both spouses present evidence by their own testimony and may call other witnesses. The decision rendered by a judge or jury is written into a court order that is binding upon both parties. The wife’s maiden or former name can be re-established if she so desires.
What about the children?
The welfare of children is of major concern to the court. Neither parent is automatically entitled to custody. The judge looks at the best interests of the child when determining custody. The judge considers many factors when deciding custody, including the age and sex of the child, compatibility with each parent and the ability of each parent to care for and nurture the child. A child more than 14 years of age can choose which parent will have custody upon the consent of the court. The court considers it important for a child to maintain relationships with both parents; therefore, visitation rights are awarded to the parent who is not given legal custody of the child.
May the parents share custody?
The court, in its discretion, can award joint custody instead of sole custody. There are two types of joint custody. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child; joint physical custody means that physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.
What are child support obligations?
The child support law in Georgia changed effective Jan. 1, 2007. The new law is based on an "income shares" model that requires consideration of both parties’ gross income. "Gross income" has a very broad definition and encompasses salary, commissions, income from self-employment, bonuses, overtime payments, severance pay, recurring income from pensions, interest and divident income, trust income, capital gains, gifts, prizes, lottery winnings and income from any other source. Once the monthly gross income of each party is determined, the two incomes are added together to get the combined ajusted income amount. A Child Support Obligation Table is then used to get the Basic Child Support Obligation. To use the table, locate the line corresponding with the combined adjusted income amount and then apply the amount in the column that corresponds with the number of children for whom support is being determined. That Basic Child Support Obligation is then applied to each parent’s proportionate share of the combined adjusted incom
(For example, if the father’s monthly gross income is $3,000 and the mother’s montly gross income is $2,000, their combined adjusted income is $5,000, of which the mother’s income represents 40 percent and the father’s income represents 60 percent. The child support obligation for a family with combined adjusted income of $5,000 per month for two children is $1,297. Thus, if the father is the noncustodial parent, he will pay 60 percent of the child support obligation, $778.20, or if the mother is the noncustodial parent, she will pay $518.80, which is 40 percent of the child support obligation.)
The cost of medical insurance on the child and the cost of work-related childcare will result in the amount of the child support payment being modified with credit being given to the parent who is actually paying these expenses. In addition, the amount of child support may be modified by certain deviations provided it is in the best interest of the child to deviate from the presumptive amount of child support. Examples of deviations may be extraordinary education expenses like private school tuition or tutoring; extraordinary medical expenses; or special expenses which must exceed 7 percent of the basic child support obligation, such as extracurricular expenses, sumer camps, dental insurance, parenting time adjustment or any other appropriate deviation. You can access the guided electronic worksheet used in calculating child support at www.georgiacourts.org/csc. You may also download an Excel version of the worksheet through this same website.
In addition to the child support payment, the court (or parties by agreement) will also designate what percentage each parent will pay of the child’s uncovered medical and dental expenses.
In Georgia, both parents have a duty to financially support the child until that child turns 18, marries, dies or becomes emancipated, whichever occurs first. However, if the child has not graduated from high school prior to reaching age 18, then the obligation to support that child continues until the child graduates from high school provided the child remains a full-time student, but not beyond the age of 20.
May I receive money for the children’s college?
The court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.
What is alimony?
Alimony is payment by one spouse to the other for support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period or until the spouse receiving alimony dies or remarries. It may be paid in one payment of money or property, or it may be paid over a period of time.
What happens to "our" possessions in a divorce?
One of the most difficult and complex areas of divorce is the division of marital property. Marital property is all property acquired during the marriage, except for property received by gift from a third party or by inheritance. Each spouse is entitled to an equitable share of all marital property acquired during the marriage. The judge or jury will decide on the division of marital property. Marital property will be divided equitably (not necessarily equally) between the parties regardless of how the title to the property is held. There is no set formula or percentage amount used to divide marital property.
How will the court order be enforced?
The court order can be enforced by garnishment or a contempt action. A contempt action is filed in the same court that issued the divorce. In addition, support orders can be enforced through the district attorney’s office if the non-paying spouse resides out of town.
If my spouse and I agree on all matters pertaining to getting a divorce, do we still need a lawyer?
A lawyer will ensure that all matters that should be resolved in a divorce are resolved. Acting without a lawyer could end up being a costly mistake both to the parties and to their children.
What do I do if I am the victim of family violence?
Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitable alternate housing for the victim and children, as well as financial relief.
The victim does not need a lawyer to file a Family Violence Petition. The clerk of the Superior Court in the victim’s residing county may provide forms for the Petition or be able to direct a victim to a family violence shelter or social service agency for direction.
SOURCE: State Bar of Georgia
Generally, after a divorce the parties and the court do not have authority to modify the terms of the divorce decree. But there are many exceptions to this rule. A few of them are:
(1) Child Custody. Child custody may be modified by the court if it is proven that there has been a new and material change of conditions affecting the welfare of the child and the welfare of the child requires modification of the original decree. The change must be based on matters occurring since the last decree.
(2) Child Support. Child Support may be modified based on a showing of a change in the income and financial status of either of the two former spouses or based on a change in the needs of the child.
(3) Visitation. Visitation may be modified without having to show the court that there is any material change in either of the parents or the child. However, you can’t go back to court to change the visitation schedule more than once in any two-year period following the last judgment made by the court.
Modification of a final decree can be a complex process. It is recommended that you discuss this process with an attorney.
SOURCE: Atlanta Legal Aid