There are a number of different types of cases where the custody of a child can become an issue. In a Divorce in the State of Georgia the custody of all children must be determined before the parties can be granted a divorce. Custody may also be determined as a separate issue between biological parents who are separated, but not divorced, and also those that have never been married.
The custody of a child cannot be given to someone who is not a biological parent unless it is determined, by clear and convincing evidence, that it would be in the child's best interest to live with a relative other than the biological parent. It is no longer necessary that the parent be found to be unfit.
In deciding custody the Judge will sometimes ask for a Guardian Ad Litem to help investigate from the child's perspective and make a recommendation to the Court. The Judge will consider the age and gender of each child, whether there are siblings, the relationships with the parents, and which parent has been the primary caretaker during the marriage. The Judge will also consider which parent, if given custody, will help the child maintain a healthy relationship with the non-custodial parent. The Court almost always awards visitation to the parent not given custody.
The parties may agree on any custody and visitation schedule they wish, and the Judge will usually approve. Georgia also recognizes joint custody, but separates it into two types. 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 to assure that the child spends approximately an equal amount of time and has equal contact with each parent. The Judge has the power to split these or award them together.
A child over the age of 14 can choose which parent to live with, and the Judge will consent unless specific findings are made that the parent chosen is unfit. The Court must also consider the wishes of a child between the ages of 11 and 14 as to which parent they wish to live with. However, this is not binding on the Judge, and other factors could override the child's wishes.