Unfit Parents and Child Custody in Georgia

Learn how courts in Georgia determine if a parent is unfit to have child custody.

By , Attorney

When parents separate or divorce, one parent may receive sole physical and/or legal custody. However, the parent without custody still has visitation rights. A court does not have to find one parent "unfit" in order to award sole custody to the other parent.

A judge will terminate parental rights only in the most extreme circumstances. A child's best interests are at the heart of any custody decision. When a child's best interests demand it, a judge may terminate a parent's rights over a child such as when there's been a history of neglect and abuse. For more information on parental rights and child custody in Georgia, see our article Georgia Child Custody Laws.

What Is an "Unfit Parent" in Georgia?

Sometimes, a parent loses the right to custody of a child because a court determines that the parent is unfit. See Ga. Code § 19-7-4 (2020). In Georgia, an unfit parent is one who has been deemed incapable of caring for his or her child.

Under Georgia law, a parent can give up parental custody rights voluntarily or can be deemed "unfit" and lose such rights by:

  • abandoning a child
  • cruelty or abusive treatment of the child,
  • raising a child under immoral or obscene influences, or
  • failing to provide a child with the necessities of life.

A judge will look at the totality of circumstances in determining whether a parent is unfit. For example, a parent who occasionally serves a child cereal for dinner won't be seen as failing to provide for the child's welfare.

However, if a parent regularly commits family violence and chooses to avoid feeding, clothing, or otherwise caring for a child, a judge may terminate that parent's parental rights. Specifically, a judge will terminate parental rights when doing so is necessary to protect the child's well-being.

When Can a Third-Party Gain Custody of a Child?

Under Georgia law, certain close relatives, such as grandparents, aunts, uncles, and siblings, can bring an action seeking to establish child custody with them rather than one or both of the child's parents. See Ga. Code § 19-7-1 (2020). There's a rebuttable presumption that it's in a child's best interests to award custody of a child to that child's parents.

However, that presumption can be overcome if a parent gives up his or her parental rights or the court deems the parent unfit. A third-party can obtain custody over an unfit parent if the judge finds that awarding custody to the third party would promote the child's well-being and happiness.

Showing that a parent is unfit is a very serious undertaking. In Georgia, a parent's right to custody of a child is a fundamental liberty interest protected by the United States Constitution. Because parents' custodial rights of their children are constitutionally protected, a court requires substantial proof of a parent's unfitness to be supported by "clear and convincing" evidence before terminating parental rights in Georgia.

Unless there's been abandonment or cruelty, a court will not ordinarily find a parent to be unfit as long as that parent is behaving responsibly in trying to care for a child and is currently able to provide the child with adequate food, shelter, and protection.

It is not enough for a third-party relative seeking custody to show that the parent has faced challenges in providing for the child due to unemployment or poverty. A parent won't be deemed unfit for immoral behavior, such as an adulterous affair, unless that immoral behavior causes the parent to be unable or unwilling to care for the child.

Parental fitness isn't based on how luxurious a lifestyle the parent can or can't provide; and a third-party can't obtain custody over a parent just because the third-party would provide the child with better financial opportunities. In other words, the court won't compare a parent's ability to raise the child to the third party's ability; a court will only look at whether or not the parent is actually unfit.

How to Get Emergency Custody in Georgia

In some cases, a child's safety or life depends on an immediate change in custody. Emergency custody orders (also called "ex parte orders") are appropriate when there's an immediate threat to a child's wellbeing such as parental kidnapping , drug addiction, or child abuse. Emergency orders usually require the parent to appear in court or participate in a drug testing program.

A close relative of the child, or the State of Georgia, can petition the court for an emergency hearing. A judge will schedule a hearing as soon as possible after the Motion for an Emergency Hearing is filed—sometimes within 24 hours. At the hearing, a judge will consider evidence from all sides.

If the judge determines that it would be in the child's best interests to be removed from his or her parents' home, a judge will place the child with a close relative or the foster care system. See Ga. Code § 19-7-5 (2020).

Emergency custody orders are usually temporary orders designed to keep a child safe until a permanent custody order can be established. Parents will usually have a follow-up hearing after the initial emergency hearing. Emergency custody orders don't terminate parental rights, but can serve as a reminder to parents to clean up their act or risk losing their children forever.

If you still have questions about parental fitness and child custody in Georgia, you should contact an experienced family law attorney for advice.

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