How Domestic Violence Affects Child Custody in Georgia

Domestic violence is an unfortunate and disturbing fact of life in Georgia and every other state. It takes on added significance when there are children involved, as witnesses, victims, or both. As a result, courts take domestic violence very seriously when dealing with child custody disputes.

Child Custody in Georgia in a Nutshell

There are two categories of child custody in Georgia: legal custody and physical custody. Legal custody refers to parents' authority to make the major decisions affecting a child's life, such as education, health, and religious upbringing. Physical custody relates to where the child will primarily live.

Ideally, parents will have joint legal custody, giving each an equal say regarding the child's upbringing. Physical custody, by its very nature, is a bit trickier. More often than not, a child will end up living most of the time with one parent, while the other parent will have visitation rights (often called parenting time).

That's not to say that parents can't have joint physical custody. When they do, the child spends approximately an equal amount of time living with each parent, ranging anywhere from a few days per week with each, to literally spending six months with one and six with the other. You're more apt to see joint physical custody if the parents live close to each other, so that you don't have to worry about things such as which school the child will attend.

When judges are making custody decisions, they're tasked with prioritizing the best interests of the children. Georgia law provides several factors for judges to consider when determining a child's best interest in each case. Those factors include any evidence of:

• family violence
• sexual, mental, or physical child abuse, or
• either parent's criminal history.

(Ga. Code § 19-9-3(a)(3)(P) (2023).)

What Constitutes Family Violence in Georgia?

It's a common misconception that domestic violence is limited to acts between spouses or between parents and children. But it's actually much broader in its scope. Under Georgia law, family violence includes certain violent crimes between:

• past or present spouses
• parents of the same child
• parents and children
• stepparents and stepchildren
• foster parents and foster children, and
• other persons living or formerly living in the same household.

Also, courts in Georgia have held that the family violence law applies to siblings, based on the theory that it's common for siblings to have lived in the same household at some point in time. (Jones v. Spruill, 786 S.E.2d 848 (Ga. Ct. App. 2016).)

The criminal acts that are considered domestic violence include:

• any felony
• assault
• stalking
• criminal damage to property
• unlawful restraint, and
• criminal trespass.

Note, however, that reasonable discipline administered by a parent to a child (including corporal punishment, restraint, or detention) is not considered domestic violence under Georgia law. (Ga. Code § 19-13-1 (2023).)

Impact of Domestic Violence on Custody Decisions

It stands to reason that when a judge finds a parent guilty of domestic violence, that will play an important role in a custody decision. In those situations, Georgia law sets out the following directives:

• The judge must primarily consider the safety and well-being of the child and of the parent who is the victim of family violence.
• The judge must consider the abuser's history of causing physical harm, bodily injury, assault, or making someone reasonably fear any of those outcomes.
• The judge shouldn't find that a parent has abandoned a child when that parent is absent or has moved out of the home for a reasonable amount of time because of the other parent's domestic violence.
• The judge may not refuse to consider relevant or otherwise admissible evidence of acts of family violence when making a custody decision just because another court hasn't previously found there was domestic violence in the family.
• The judge may order supervised visitation or parenting time in the case (more on that below), along with any other appropriate orders.

(Ga. Code § 19-9-3(a)(4) (2023).)

Can Abusive Parents Ever Get Custody?

Depending on the overall circumstances, it's not out of the question for some abusive parents to get custody of their children.

In one Georgia case, for example, a mother had moved to North Carolina shortly before filing for divorce, because she'd lost her job in Georgia. The judge awarded custody of the couple's children to the father, despite evidence that he had committed two acts of domestic violence against the mother. At first blush that might seem unfair. But remember, judges must be guided by the best interests of the children. In this case, the appeals court held that the evidence supported the judge's decision because:

• the father had taken responsibility for his actions, was remorseful, and hadn't committed ongoing violence
• the children had a close relationship with their father, as well as with extended family in the area where he continued to live, and
• the children would benefit from staying in their school and church.

(Welch v. Welch, 277 Ga. 808 (Ga. 2004).)

Can Abusive Parents Lose Physical and Legal Custody?

Sometimes, a parent may get full custody if the other parent is abusive. By "full custody" we're talking about complete legal and physical custody. This means the abusive parent not only can't have the children live with them but is also shut out from making decisions about the child's upbringing.

A Georgia court issued such a ruling in a hearing to modify an existing custody order. The judge gave the mother complete legal and physical custody, based on the father's:

• continued abuse of methamphetamine
• failure to comply with the directives of a family violence protective order
• pattern of obsessive and strange behavior
• failure to meaningfully bond with the children, and
• inappropriate discipline of the children, as well as communication with them.

(Simmons v. Wilson, 806 S.E.2d 267 (Ga. Ct. App. 2017).)

Be aware that some domestic abuse can be so bad that the abuser's parental rights might be terminated.

Can Domestic Violence Affect Visitation?

Under Georgia law, a judge may award visitation or parenting time for a parent who's committed family violence, but only if there are adequate protections for the child's safety as well as that of the other parent. Those protections may include:

• supervised visitation (more on that below), which could include a requirement to pay a fee to defray the associated costs
• no overnight visitation or parenting time
• requiring the abusive parent to post a bond to ensure that the child is safely returned after visitation
• ordering the abusive parent to abstain from possessing or using alcohol or drugs during visitation and for the preceding 24 hours
• requiring the parents to exchange the child for visitation in a protected setting (such as a police or fire station)
• ordering the abusive parent to complete a family violence intervention program
• ordering that the address of the child and the abuse victim be kept confidential, and
• any other condition that protects the safety of the child, the abuse victim, or another family or household member.

The judge may not require the abuse victim to attend joint counseling with the abuser as a condition for any award of custody or parenting time. (Ga. Code § 19-9-7 (2023).)

Supervised Visitation in Georgia

Supervised visitation is a way to maintain the parent-child connection while also looking out for the child's safety. Typically, a trained supervisor (often a social worker) will oversee the visitation sessions. The supervisor doesn't necessarily interact with the parent or child, but rather keeps a watchful eye to ensure nothing happens that could be detrimental to the child's well-being.

Occasionally, judges will allow a family or household member to supervise visitation. You tend to see this in situations where there's no perceived danger of violence. But when judges allow this, they must set conditions, such as restricting the location for the visitation or prohibiting the consumption of alcohol during the supervised session. (Ga. Code § 19-9-7(d) (2023).)

What to Do When There's a Domestic Violence Incident

Whenever you fear for your immediate safety, you should dial 911 and get help.

If you want to get a court order to prohibit your abuser from harming or contacting you (or your child, as appropriate), you'll need to request a family violence protective order from your county superior court. You may ask for an "ex parte" protective order (sometimes called a temporary protective order, or TPO) if you believe you or your child is in immediate danger. If a judge grants that request, the TPO will remain in effect only until there's a full court hearing, which generally must happen within 30 days. Both you and your abuser will have the right to appear at the hearing to testify and present other evidence. After hearing the evidence, the judge will decide whether to issue a one-year protective order. (Learn more about family violence protective orders in Georgia, including the specific requirements and other provisions that may be included in them.)

If you're unsure how to proceed with a domestic violence case, you'd be well-advised to consult a local family law attorney for help.