How will a judge make a decision about custody?
Generally, the state of Georgia encourages a child to have continuing contact with both parents.1 However, custody will be determined according to what the judge considers to be in the child’s best interest. The judge may consider any relevant factor including, but not limited to the following:
- Love, affection, bonding, and emotional ties existing between the child and each parent, as well as his/her siblings, half siblings, and step-siblings;
- Ability of each parent to give the child love, affection, and guidance and to continue raising and supporting the education of the child;
- Each parent’s knowledge and familiarity of the child and the child’s needs;
- Ability of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care; (Note: When looking at this, the judge will also take into consideration the fact that the other parent might provide child support);
- Home environment of each parent (focusing on if the environment will allow for the nurturing and safety of the child, rather than superficial or material factors);
- Importance of continuity in the child’s life and the length of time the child has lived in a stable environment;
- Stability of each parent’s family and community support systems;
- Mental and physical health of each parent except that a parent cannot be denied custody just because s/he is legally blind;2 (Note: The judge has the power to order a psychological or medical evaluation of the family);3
- Each parent’s involvement in the child’s educational, social, and extracurricular activities;
- Each parent’s employment schedule (looking at how flexible the parent’s schedule is and what limitations exist, if any, to care for the child);
- 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 ability to manage parenting responsibilities (both past and future);
- Each parent’s willingness and ability to encourage a close and continuing parent-child relationship with the other parent (if it is in the best interests of the child);
- Any recommendation by a court-appointed custody evaluator or guardian ad litem (attorney or representative appointed for the child during the court case);
- Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
- Any evidence of substance abuse by either parent.2
When evidence of family violence is found, the judge will also take into consideration:
- the safety and well-being of the child and of the parent who is the victim of family violence – this should be one of the judge’s main concerns; and
- the abuser’s history of violence or of causing reasonable fear of violence to another person.4
Note: For purposes of a custody decision, if a parent is absent or relocates because of domestic violence, this will not be considered child abandonment (assuming that the parent is away for what is considered to be a reasonable amount of time).5
1 O.C.G.A. § 19-9-3(d)
2 O.C.G.A. § 19-9-3(a)(3)
3 O.C.G.A. § 19-9-3(a)(7)
4 O.C.G.A. § 19-9-3(a)(4)
5 O.C.G.A. § 19-9-3(a)(4)(C)
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to GA Finding a Lawyer to seek out legal advice.
At what age can my child decide who s/he wants to live with?
In cases involving children who are 14 years old or older, the child will have the right to select which parent s/he wants to live with. The child’s choice will be honored unless the judge determines it is not in the child’s best interest. If your custody order was decided before your child turned 14, you may be able to modify your custody order based on your child’s preference once s/he turns 14. So, for example, if you lost custody of your child when the child was 10 and now that your child is 14, s/he wants to live with you, you can file a petition to modify the custody order based on your child’s preference. If the judge believes it is in the child’s best interest to live with you, the judge might modify (change) the custody order.1
In cases where the child is between the ages of 11-13, the judge will consider who the child wants to live with; however, the judge will not necessarily honor this preference.2
1 O.C.G.A. § 19-9-3(a)(5)
2 O.C.G.A. § 19-9-3(a)(6)