The question of "What gets custody of the kids?" is one of the most difficult and often the most emotionally draining both for parents and their children, when spouses divorce. Custody and visitation are the legal terms in court ordered determinations of which parent the child lives with and the conditions for the child to visit the other parent. Custody and visitation are never considered to be final. In Georgia, the law does not favor either the mother or father. Rather, they look to the relationship of each parent with the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents. This section is designed to give you a general knowledge of the issues involved in determining the parties custody and visitation rights.
When should you have an attorney?
In the event that you have a highly volatile, hostile or contested custody issue you should seek out a lawyer to represent you. Additionally, if the other parent is using the services of an attorney, it is advisable that you also have an attorney.
Jurisdiction is the imaginary fence that separates the subjects one court hears from another. There are two types of jurisdiction: personal and subject matter. The court must have both types of jurisdiction to hear a case. Personal jurisdiction, the power to require a person to appear in court, is discussed in the Service of Process section of this Web site. To have jurisdiction over your specific custody or visitation case the court will require one of the following: [Georgia has statutory guidelines for determing custody].
- Georgia is the home state of the child (lives in state, goes to school in state) and the parent has sufficient contact with the state (works, votes, lives, pays taxes in Georgia).
- Georgia was the child’s home state within the last six months and the parent filing for custody continues to live in Georgia and the child is absent from the state because another person took them out of Georgia claiming custody.
- The child and at least one of the parents have significant connection with Georgia (live, work, go to school here) and in Georgia there are more records and witnesses to give evidence of the child’s present or future care, protection, training and personal relationships.
- The child is physically present in Georgia and was abandoned or emergency protection is necessary (the child was threatened or subjected to abuse or neglect).
- No other state would have jurisdiction based on 1,2,3, or 4 above.
- Another state says Georgia has jurisdiction.
- Child was removed from Georgia and the Uniform Child Custody Jurisdiction Act does not apply and no other state has jurisdiction, then Georgia will have jurisdiction if:
- Georgia was where the married couple lived, paid taxes, voted, etc., but the parents are now currently separated or divorced or Georgia was where the marriage contract was last performed.
- One parent is a resident of Georgia and was a resident when the child was removed.
- Court has personal jurisdiction over the parent who has removed the child.
The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by Georgia, as well as the other 49 states. This act gives jurisdiction for custody cases to the location that is most closely associated with the child. Within Georgia, the Circuit Court has jurisdiction to hear child custody cases. That court has the power to override any agreement if they believe the agreement is not in the best interest of the child.