Unfit Parents and Child Custody in Georgia

When parents are divorcing or were never married, they both have a right to seek custody of their children. Ideally, both parents will have an equal say in how their children are raised ("legal custody"), and both will have the right to spend time with their kids. But while that scenario is common, not every parent has the ability to make sound decisions and provide proper care for a child. If a parent could jeopardize a child's welfare, a judge may award full custody to the other parent.

The Role of Parental Fitness in Child Custody Disputes

In any custody dispute between parents, the judge will make a decision based solely on what's in the child's best interests and what would best serve the child's welfare and happiness. Georgia's child custody laws spell out a number of factors that must go into these decisions. A parent who's fighting for custody doesn't necessarily have to prove that the other parent is unfit. Still some of the "best interests" factors are related to parental fitness. For instance, the judge must consider each parent's:

• ability to provide for the child's needs and other basic care
• ability to take on parenting responsibilities
• mental health
• substance abuse, and
• history of child abuse.

(Ga. Code § 19-9-3(a)(3) (2023).)

However, a separate (and very old) Georgia law specifically authorizes judges to deprive parents of custody if it's necessary to protect a child who has been:

• abandoned
• neglected, or
• reared under "immoral, obscene, or indecent influences," including "habitual drunkenness, lewd or other vicious habits."

(Ga. Code § 19-7-4 (2023).)

Child neglect could cover a range of parental lapses, including failing to provide a child with adequate food or supervision that's necessary for the child's physical, mental, or emotional health. When it comes to abandonment, Georgia courts have found there must be evidence that the parent (or parents) actually deserted the child and meant to completely cut off the parent-child relationship and give up all parental duties and claims. (In the Interest of S.H, 352 S.E.2d 621 (Ga. Ct. App. 1987).)

How to Prove a Parent Is Unfit

If you want to convince a judge that you should have full custody of your child because the other parent is unfit, you'll need evidence to support your claims, such as:

• police reports documenting the other parent's violent temper or incidents involving substance abuse
• reports from social workers or county welfare agencies documenting the other parent's child abuse or neglect, or
• testimony from friends or relatives who've witnessed child neglect in the other parent's home, including squalid living conditions, lack of proper food, or leaving a young child home alone.

Any legitimate proof that a parent is jeopardizing a child's well-being will probably be admissible in a court hearing about child custody. But anytime you're involved in a custody dispute in court, you should strongly consider speaking with a knowledgeable family law attorney who can help you navigate the legal process and gather the right kind of evidence to support your claims.

Losing Custody Isn't the Same as Losing All Parental Rights

Just because a parent loses custody of a child, that doesn't mean the parent has lost all parental rights. A parent who doesn't have custody may still have the right to visit the child and be involved in major decisions about the child's upbringing, as long as that would be in the child's best interests.

Also, if the circumstances have changed significantly, the parent may return to court and seek a modification in the current custody orders. For instance, a parent whose parenting time was restricted to supervised visitation because of substance abuse could ask the judge to lift those restrictions after successfully completing a rehabilitation program.

In contrast, when a judge terminates someone's parental rights in Georgia, that person is completely cut out of the child's life—no visitation rights, no say in the child's upbringing, and no way to regain any of those rights. Termination of parental rights is a drastic step that's reserved for the most extreme cases of unfit parents. It's a completely separate legal proceeding from any custody dispute between parents (or between parents and other relatives, as discussed below), with its own laws and procedures. Also, it takes place in juvenile court rather than in superior court, which handles divorces and other custody disputes.

When Georgia Judges May Award Child Custody to a Relative Instead of a Parent

Under Georgia law, certain close relatives may ask a judge to award child custody to them rather than to the child's parent or parents. This right is limited to a child's:

• grandparent
• great-grandparent
• aunt or uncle
• great aunt or great uncle
• sibling, or
• adoptive parent.

The law assumes that it's in a child's best interests to award custody to a parent. Eligible relatives may overcome that presumption, but the Georgia Supreme Court has set a high bar for doing so. Relatives don't have to show that the child's parents are unfit, but they must prove that the child would be harmed if a parent had custody. In this context, "harm" means physical harm or significant, long-term emotional harm—not simply economic or social disadvantages, stress, or discomfort. Then, after demonstrating that potential harm, the relatives must show that awarding custody to them would best promote the child's health and welfare. (Ga. Code § 19-7-1(b.1) (2023); Clark v. Wade, 544 S.E.2d 99 (Ga. 2001).)

How to Get Emergency Custody in Georgia

After you've filed for a custody modification, you may ask for a temporary change in custody before the judge makes a final decision. (Ga. Code § 19-9-3(e) (2023).) Judges will grant the request if they believe it's necessary for the child's welfare, but there's no need to prove that the circumstances have changed. Any temporary order won't necessarily forecast the ultimate outcome of the modification request. (McManus v. Johnson, 849 C.E.2d 708 (Ga. Ct. App. 2020).)

If there's an imminent threat to a child's well-being, it would be appropriate to ask the court for immediate assistance. You can initiate the request by filing a petition for an emergency court order (also known as an "ex parte" order or "order to show cause") with the court. A judge will schedule a hearing as soon as possible after the request is filed—sometimes within 24 hours.

Obviously, if time is of the essence, you can contact the police for assistance to thwart the danger until the court can get involved.

Also, you should know that if a custody order was issued in a different jurisdiction, such as another state, a Georgia court can still issue an emergency custody order if the child is in Georgia and has been abandoned or needs immediate protection because of actual or threatened mistreatment or abuse. (Ga. Code § 19-9-64) (2023).)