There are two types of custody: legal custody and physical custody. Legal custody is the right to make decisions regarding the child. Physical custody is where the child lives.
Child Custody Criteria
If agreement cannot be reached the judge will follow a two step process for determining custody of the children. First, if any of the children are 14 years of ago or older they can choose their own physical custody arrangement. Their choice will be adopted by the court unless the court decides that it is not in their best interest. The court will usually need a strong, clear reason for not adopting the choice of a child 14 or more years old.
For children 13 years old or less, the judge will make a decision based on the following 18 factors:
- The love, affection, bonding, and emotional ties existing between each parent and the child.
- The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children.
- The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child.
- Each parent’s knowledge and familiarity of the child and the child’s needs.
- The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent.
- The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors.
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child.
- The mental and physical health of each parent.
- Each parent’s involvement, or lack thereof, in the child’s education, social, and extracurricular activities.
- Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child.
- The home, school, and community record and history of the child, as well as any health or educational special needs of the child.
- Each parent’s past performance and relative abilities for future performance of parenting responsibilities.
- The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
- Any recommendation by a court appointed custody evaluator or guardian ad litem.
- Any evidence of family violence or sexual, mental or physical child abuse or criminal history of either parent.
- Any evidence of substance abuse by either parent.
- Any other relevant factor.
If the judge does find that family violence has occurred, the judge also considers:
- The safety and well-being of the child and of the parent who is the victim of family violence.
- The perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury or assault to another person.
- The judge cannot view a parent’s move or absence for a reasonable time due to the other parent’s violence as an abandonment of the child for purposes of the custody determination.
The individual judge considers these various factors in whatever way the judge feels is appropriate. If an agreement cannot be reach, all you can do is prepare and present evidence for these various factors. The judge will then do what the judge thinks is best.
All of these factors primarily go to physical custody. Further, these factors are focused on deciding primary physical custody, rather than shared custody. Three considerations for shared physical custody are: (a) the child has a good relationship with each parent; (b) each parent has adequate housing for the child; and (c) each parent can provide what the child needs. In addition, for joint legal custody and shared physical custody, we would look to the ability of the parties to communicate and work together. We would also look to the physical proximity of the parent’s homes. Will a shared arrangement work? Also, the pattern established during the marriage is an important consideration for custody. If both parents were actively involved in caring for the children during the marriage, that points toward shared custody. If one parent was primary raising the children, that points toward sole physical custody. If the case if tried to the court, the judge may reasonably wonder, if these two people can work together and reach agreements, why haven’t they reached an agreement about custody?
Often the court will provide, or parents will agree, that the parties shall have joint legal custody, with the provision that if the parties cannot agree, the primary custodial parent will make the final decision. While this may appear to be joint legal custody, in realty it is little different from sole legal custody.
While the court is explicitly authorized to award shared physical custody, and this does happen, a conceptual preference for sole physical custody runs through Georgia law. Not only are the factors the judge will consider primarily factors for choosing between the parents, rather than factors for shared custody, Georgia child support is based on primary physical custody. Any reduction in child support due to shared physical custody is an undefined discretionary deviation. The required standard parenting form provided by the state only works for primary physical custody. If you want to propose or agree to shared physical custody, you have to attach a supplemental sheet that you have worked up yourself.
If an agreement cannot be reached, the party wanting a shared physical custody arrangement has to persuade the judge that their plan is in the best interest of the children.
As a Brunswick Georgia child custody lawyer, Lee S. Ashmore can help you protect your rights to your children. Call him at (912) 275-7728.
The Law Office of Lee S. Ashmore specializes in family law. We have expertise in child custody, child custody modifications, and enforcement of child custody agreements and orders.
The Bank of America Building
777 Gloucester Street, Suite 402
Brunswick, GA 31520
P: (912) 275-7728
F: (912) 342-7142