Who can get custody?
A judge will decide who should have custody based on what s/he thinks is in the best interest of the child. The judge will assume that parents should share the rights and responsibilities to a child.1 Parents have a legal duty to maintain, protect, and educate their children until the children are no longer legally in their care.2 “Parents” usually means biological or adoptive parents under the law.
If one parent dies, the other parent generally is entitled to custody. However, if the that parent has been criminally indicted for murder or voluntary manslaughter of the other parent, the judge has the option to decide not to give that parent custody.3
There are some cases in which someone who is not a child’s biological or adoptive parent may be able to get custody. This person could be legally unrelated to the child, such as a parent’s spouse or partner, or the child’s relative who has been acting as a parent.4 For example, a stepparent who has not legally adopted his/her spouse’s child may be “legally unrelated” to the child, and may have to apply as an “equitable caregiver” to have custody or visitation rights. You can learn more about non-parents getting custody at I am not the child’s biological or adoptive parent, but I have acted in a parental role. Can I get custody?
1 O.C.G.A. § 19-9-3
2 O.C.G.A. § 19-7-2
3 O.C.G.A. § 19-9-2
4 O.C.G.A. § 19-7-3.1
Can a parent who committed violence get custody or visitation?
The judge must take into consideration any evidence of family violence when making a custody decision. 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. The judge should also consider the abuser’s history of violence or of causing reasonable fear of violence to another person.1 However, there are many other factors that s/he will consider as well - see How will a judge make a decision about custody? Therefore, the fact that a parent committed family violence does not necessarily mean that s/he will be denied custody.
Visitation or parenting time may be awarded to a parent who committed violence only if the judge believes that proper measures can be taken to ensure the safety of you and your child. Here are some things the judge could include in the visitation order:
- that the transfer of your child (from one parent to another) take place in a protected setting;
- supervised visitation by another person or agency (the abuser may be ordered to cover the cost of this);
- that the abuser has to attend and complete a certified family violence intervention program;
- that the abuser cannot drink or do drugs during the visitation and for twenty-four hours before the visitation;
- that overnight visitation is not allowed;
- that the abuser post a bond (money) for the return and safety of the child; and
- require any other condition that is considered necessary to provide for the safety of the child, the victim of violence, and any other household member.2
Whether or not visitation or parenting time is allowed, the judge may order the address of the child and the victim of family violence to be kept confidential.3
Note: A judge will not order you to attend joint counseling with the abuser as a condition of receiving custody, visitation, or parenting time.4
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer, see our GA Finding a Lawyer page.
1 O.C.G.A. § 19-9-3(a)(4)
2 O.C.G.A. § 19-9-7(a)
3 O.C.G.A. § 19-9-7(b)
4 O.C.G.A. § 19-9-7(c)
What is the effect of a parent's military deployment on custody issues?
There are specific laws that address the effect of a parent’s military deployment on custody issues. If this applies to you, please go to Georgia statute 19-9-3, which you can read on our statutes page - please scroll down to subsection (i).
I am not the child’s biological or adoptive parent, but I have acted in a parental role. Can I get custody?
The law allows for a person to establish him/herself as an “equitable caregiver,” which is a person who has acted as a parent for a child under certain circumstances. An equitable caregiver could be:
- a stepparent who has not adopted the child, but has acted as the child’s parent;
- a parent’s romantic partner who has acted as the child’s parent;
- another family member who has been acting as the child’s parent; or
- another person substantially involved in the child’s life in a parental role.
You can only get custody or visitation as an equitable caregiver if the child’s parents are separated, and the child is not living with both parents.1 However, you cannot ask the court to become an equitable caregiver if:
- your relationship to the child was created as a result of “dependency proceedings,” or because the child was removed from his/her parents’ home as a result of abuse, neglect, or exploitation and placed with you; or
- there is an open child welfare and youth services case from the Division of Family and Children Services of the Department of Human Services about the child and his/her parents.2
For more information on how you can convince the judge that you should be considered an “equitable caregiver,” go to What will I need to prove to the judge to establish myself as an equitable caregiver?
1 O.C.G.A. § 19-7-3.1h)
2 O.C.G.A. § 19-7-3.1(i)
What will I need to prove to the judge to establish myself as an equitable caregiver?
You may be able to establish yourself as an equitable caregiver without proving any of the following if:
- the child’s parent agrees for you to have a parental relationship with the child; or
- you and the child’s parent have a written agreement that shows that you both intend to share or divide responsibility for the child’s care.3
If the child’s parent does not agree to either of the above, you may be able to establish yourself as an equitable caregiver if you can show by clear and convincing evidence that you have:
- fully and completely taken a permanent, absolute, committed, and responsible parental role in the child’s life;
- consistently cared for the child;
- established a bond with the child where the child depends on you;
- established the relationship with the support of the child’s parent, and you and the parent have both understood, acknowledged, accepted, or behaved like you’re the child’s parent;
- accepted full and permanent parental responsibilities without any expectation of payment; and
- shown that the child will suffer physical or long-term emotional harm without you by proving the factors below and that continuing your relationship with the child is in the child’s best interests.1
The judge will decide whether the child will suffer physical or long-term emotional harm if s/he is not allowed to have a relationship with you after considering the following factors:
- who has taken care of the child in the past, and who is now taking care of the child;
- the people with whom the child has psychological bonds and the strength of those bonds;
- whether each party has been interested in and had contact with the child;
- whether the child has any unique medical or psychological needs that a specific person is better able to meet; and
- any other relevant factors.2
1 O.C.G.A. § 19-7-3.1(d)
2 O.C.G.A. § 19-7-3.1(e)
3 O.C.G.A. § 19-7-3.1(f)
I am the child's family member (grandparent or sibling). Can I get visitation?
The law allows for a grandparent, great-grandparent, or sibling (known in the law as a “family member”) to file for visitation in certain circumstances.
A grandparent can file an original petition for visitation rights only if the child’s parents are separated or if the child’s parent dies. If the parents of the minor child are not separated and the child is living with both parents, a grandparent cannot start his/her own case for visitation unless one of the parents is incapacitated or incarcerated.1 A grandparent cannot file an original petition more than once in any two-year period and cannot file in any year in which another custody action has been filed concerning the child.2If a parent wants to file to modify or dismiss the grandparent’s visitation rights, such a petition also cannot be filed more than once in any two-year period.2
A grandparent, great-grandparent, or sibling can file to intervene in any case that is already in court involving:
- the issue of custody or visitation rights of the child in question;
- divorce of the parents or of a parent of the child;
- termination of the parental rights of either parent of the child; or
- an adoption in which the child has been adopted by the child’s blood relative or by a step-parent.4
The judge can grant visitation rights to a family member if there is “clear and convincing evidence” that the visitation is in the child’s best interests and that the health/welfare of the child would be harmed if the visitation is denied. If there is no substantial pre-existing relationship between the child and the family member, the fact that the child would miss out on the opportunity to develop a relationship with that family member is not enough to be considered “harm” to the child. If you are the family member, the judge can find that “harm” to the health/welfare of the child is likely to occur if, before filing for visitation:
- the minor child resided with you for six months or more;
- you provided financial support for the basic needs of the child for at least one year;
- you have an established pattern of regular visitation or childcare with the child; or
- any other circumstance exists indicating that emotional or physical harm to the child would be reasonably likely to result if such visitation is not granted.5
Note: Even if a judge does not award visitation to the family member, the judge can still order the parent to notify the family member of any musical concerts, graduations, recitals, sporting events, etc., that the family member can attend.6
1 O.C.G.A. § 19-7-3(b)(1)(A), (b)(2), (d)(1)
2 O.C.G.A. § 19-7-3(c)(2)
3 O.C.G.A. § 19-7-3(b)(1)(B)
4 O.C.G.A. § 19-7-3(c)(1)
5 O.C.G.A. § 19-7-3(g)