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Divorce Cases - Child Custody

Custody is divided into two categories: physical (where the child lives) and legal (who makes the major decisions regarding the child’s health, education, welfare, religious training and extra curricular activities etc.) The standard for custody is what is in the best interests of the child. Many judges do not favor true joint custody–i.e., living with each parent one half of the time. It may be too disruptive for the child to constantly change homes. Parenting time, visitation or secondary custody, terms often used interchangeably, may change as the child gets older and has different needs. However, very liberal visitation with the non-custodial parent is generally encouraged and should usually be expected unless there is a good reason to insist on limited visits. If possible where there is prolonged parenting time with each parents, it is best and most convenient if the parents live in the same school district. In certain cases it may be appropriate to insist on a supervised visitation. If you think supervised visitation is needed talk to your lawyer as this requires gathering appropriate evidence.

Joint legal custody where both parents share in the making of major decisions regarding the child’s life is quite common in Georgia. However, many judges require that the Settlement Agreement name a "tiebreaker, i.e., a party who will make the final decision if the parties cannot agree. This usually the primary custodial parent, but can be the non-custodial parent, or even a third party. The parties may also split legal custody by issue. Some agreements require the parties to mediate any issues prior to filing a court action.

Any divorces filed after January 1, 2008 must also include a "parenting plan." The Plan must specify who is primary physical custodian and who is secondary physical custodian of each child. It sets forth who has the final say in a particular area of a child’s life. For example, the Father may want to determine which extra curricular activities his son participates in while the Mother wants final say in where the child goes to school. If there is a disagreement, the parenting plan should set out how that disagreement will be resolved. The parenting plan will also set forth the percentage of time each parent will have with the child or children, visitation and holiday schedules as well as many other questions which the parents must answer including but not limited to visitation, what happens when one party needs or wants change or cancellation of a visit/parenting time, procedures to be used if there is a need to cancel time with the other parent and telephone access to each parent. Special provisions such as no overnight visits by someone of the opposite sex who is not related by blood or marriage or no alcohol consumed in the presence of the child may also be included where appropriate.

Also after July 1, 2008, the parties will be able to arbitrate parenting plans if they can’t agree. An independent neutral will hear evidence from each parent and other relevant witnesses which can include input from the child’s school, guardian ad litem, psychologists and psychiatrists. As a trained arbitrator with fifteen (15) years experience arbitrating cases, I welcome the opportunity to help parents with developing a parenting plan. The one thing to remember is that the Court will do what it believes is in the child’s best interest, not the parents convenience.

In most of the metropolitan Atlanta counties, if there are minor children of the marriage, you and your spouse will be required to attend a "Children Coping with Divorce" seminar. It is best if you do that as soon as possible so as not to delay the divorce. If you do not receive information about the seminar ask whether you will need to attend such a seminar. Because the requirements are always changing and different judges handle things differently, we must occasionally check with the Court to determine what a particular judge requires.

If you would like further information please call our office for an appointment. We would be glad to guide you through this traumatic time in your life either as your attorney or as and arbitrator.

This article is not intended to be taken as legal advice specific to your case. It is general information only. You should consult an attorney before or shortly after a divorce is filed