If parents can’t agree on custody during a divorce in Georgia, they will turn the decisions over to a judge, who will consider and decide which parent will have legal custody (the right to make decisions about the child’s welfare), physical custody (the right to live with the child), and visitation. In making these decisions, the court must always look to what is in the best interest of the child. A judge, not a jury, is responsible for making the best interest of the child determination, and the best interest of the child standard will guide every decision the judge makes about the care and custody of the child.
When deciding what is in the best interest of the child in Georgia, a judge may consider a number of factors. These factors include, but are not limited to:
- each parent’s home environment and ability to care for and nurture the child.
- each parent’s physical and mental health,
- each parent’s emotional ties to the child,
- each parent’s ability to provide the child with clothing, food, and medical care,
- the relationship between the child and any siblings, half-siblings, or stepsiblings who are in either parent’s home,
- each parent’s familiarity with the child’s health, educational, and social needs,
- each parent’s involvement in the child’s schooling and extra-curricular activities,
- each parent’s willingness to foster a relationship between the child and the non-custodial parent,
- the relative stability of each parent,
- any history of substance abuse by either parent
- any history of physical abuse, sexual abuse, or neglect of children by either parent, and
- any criminal histories of either parent.
In some cases, the judge will appoint a guardian ad litem—an attorney or other professional whose job is to represent the interests of the child—or a custody evaluator to meet with the family and make a custody recommendation to the judge. The judge is not required to follow the recommendation of the guardian ad litem or the custody evaluator, but judges generally will use the input in making a decision regarding the best interest of the child.
Georgia law requires divorcing parents to submit a parenting plan to the court in every case where custody is an issue. The parties can submit a joint parenting plan or each party may submit a separate plan. The parenting plan outlines the child’s needs and how the child’s time should be divided between the parents. It allocates decision-making authority between then parents and explains the parameters of each parent’s access to the child. The judge will use the parents’ proposed parenting plan or plans as part of the information to be considered in determining the best interest of the child. The court may also hold a hearing, at which both parents, and possibly other witnesses, may testify.
A child who is 11 or older may state a preference as to which parent the child wishes to live with. At that age, the child’s choice of custodial parent doesn’t control the court’s custody decision—the judge still has complete discretion to decide what is in the best interest of the child and which parent the child should live with. Once a child reaches the age of 14, the child’s choice will be honored unless the judge determines that it is not in the best interest of the child.