Atlanta Child Custody and Visitation Attorneys
Children are human beings and it is the responsibility of both parents to raise them with love and to care for their emotional, physical, and educational needs, and to make decisions about their future. If a divorce involves no children, it should be a lot easier to come to a settlement. Of course, this is because children are the only treasures you share with your spouse that cannot be given a monetary value or split in two. Most judges will tell you that they dread custody cases. They do not like to play God, and in many divorce custody cases, that is what they are asked to do. It is heartbreaking to see two parents fight about who will have control over their children’s lives. Judges must draw from their knowledge, past experience, the presentations of the parents and their lawyers, as well as from neutral experts, to make these all-important decisions about the children’s futures.
Kessler & Solomiany, LLC will help you prepare for what may be the most important business and personal transaction of the rest of your life. Although the team is comprised of all-star Atlanta child custody and visitation attorneys, they work with the everyday individual in mind, someone just like you—not someone with a law degree. Almost every day they see clients in their office who have many of the same concerns, misconceptions, and questions about the often confusing and complicated divorce process that you may be experiencing. In the coming weeks, months, or even years, Kessler & Solomiany, LLC attorneys can show you, step-by-step, how to ask the right questions to help get the crucial answers you need, how to prepare for trial, and much more. Contact us at (404) 688-8810 to schedule a consultation so that we can discuss with you such important issues.
Why Should I Hire a Child Custody Lawyer?
Whether it is joint legal custody, sole legal custody, or primary legal custody, a good divorce lawyer will make sure there is a provision that both parents make every effort to agree on these important issues. However, it is important for one parent to have “primary legal custody” or “final decision making authority” for times when both parents cannot agree on certain issues. Since parents cannot always agree on everything, the custody agreement is likely to name one parent as the default, the person to make the decision in the event of a disagreement between the parents.
Even if you can only agree on certain aspects of custody, you should make sure that they are in writing and will be binding on your spouse should they renege later. You and your lawyer will draw up a proposal to present to the judge, outlining why your plan for the children’s upbringing is the right one. Your spouse will likely do the same, so be prepared to stay calm, and let your lawyer present your case well. No one can “win it all” in custody cases. The best thing you may hope for is that the children survive this difficult time and get back to leading happy, productive lives in a less-than-ideal situation.
The lawyer’s role in a custody case is to present a complete picture to the judge of what it would be like if the judge granted custody to his client. This does not necessarily mean that the attorney’s client is a superior parent. Instead, the lawyer will stress that their client can provide the child a warm, safe, loving, and healthy environment in which the child can prosper. Perhaps the best indicator of this is the client’s past history of taking good care of the child. In some circumstances, the lawyer may need to impeach the other parent’s character to prove his client is better suited to have custody of the children.
What to Know About Child Custody
The term “custody” refers to a parent’s legal right or obligation to house and care for their children and to make decisions concerning their upbringing, schooling, religion, medical care, and other matters. Generally, custody is divided into two areas: physical custody and legal custody.
Physical custody refers to where the children will live—their primary place of residence. It can also refer to what periods of time the children will be with each parent. Additionally, visitation (also called “parenting time”) is a part of physical custody. Therefore, you might have physical custody of the child, but the child visits with the other parent less than 50 percent of the time. The issue becomes, which parent is the child’s primary caretaker? As a general rule, if the children are in your care for at least 50 percent of the year, then you are likely to be designated as the “primary physical custodian.”
Legal custody is a fairly intangible concept. Simply stated, it means that a person is given the right to participate in the legal decisions about the children’s upbringing, such as medical care, education, religion and extracurricular activities. “Joint legal custody” is emerging as a favored concept in many divorce cases. What this means is that parents with joint legal custody both have the right to make important decisions about school, medical care, religion, and other important issues in their children’s lives as well as have access to their children’s records.
Physical and legal custody can either be sole or joint. Joint custody is not as legally significant a term as you might think, although you hear it often in the news or movies. More significant are the details, the fine print of the custody agreement. Most parents would be unconcerned with the label of custody if they could see their children often (perhaps Wednesday through Sunday), rather than have “joint custody” that translates to only one weekend a month with their children. Therefore, the details are most important. Do not get hung up on the words. Granted, “joint custody” may sound nice, but you should focus on the specifics of your agreement such as the dates and times you will spend with your child.
Types of Child Custody
The custody arrangement you and your former partner agree to will have to address both physical and legal custody. In general, there are four types of child custody:
- Sole Physical Custody: This is a situation in which the court grants one parent complete control over where the child will be housed every day. There will likely be “visitation rights” (or “parenting time”) granted to the other parent. If you have sole custody, “visitation rights” of the other parent will be limited to less than 50 percent of the year. The other parent may have minimal time with the child, or none at all. You will need to agree to a visitation schedule that specifies what days of the week, weekends, and holidays each parent gets with the children. The parent granted sole physical custody is legally designated as the “primary physical custodian.”
- Joint Physical Custody: With this custody arrangement, both parents agree to be the primary caretakers of the child or children. In this case, parents also agree upon a joint caretaking schedule in court. Joint physical custody gives both parents substantial and significant time with their children. However, this does not mean that each parent receives equal time. Each parent will alternate as the primary caregivers of the child or children according to a predetermined timeline. Unless you have a true 50-50 split of time, one parent will still be called the primary physical custodian and the other the secondary physical custodian.
- Sole Legal Custody: This arrangement gives one parent the right and responsibility to make all important decisions about the child, including their medical care, extracurricular activities, education, religion, and more. If you have sole legal custody, you do not have to consult with the other parent before making important decisions for your child. This may allow you to make decisions more efficiently, and provide consistency for your child.
- Joint Legal Custody: Joint legal custody means that both parents have the right and responsibility to make important decisions for their children. Joint legal custody can vary, with each parent being allowed to make decisions independently, one parent being allowed to make decisions with permission of the other parent, or one parent being allowed to make decisions only after conferring with the other parent. Joint legal custody arrangements allow both parents to have a say in how their child is raised, but can also be difficult to adhere to if parents have disagreements.
Parents should always reflect on their lifestyles and circumstances before coming to a decision about custody. Though joint custody may sound good on paper, you have to determine whether joint physical custody will work with your schedule, or whether you and your former partner are likely to be able to come to agreements about important decisions. It is also important to note that the labels are less important than they may seem. Many parents don’t care whether they officially have joint or sole custody, as long as they get to spend time with their children regularly. A lawyer can help you determine what custody arrangement will work best for you and help you protect your rights and desires.
Biases in the Courtroom
There should not be a presumption that one parent is better for the child than the other parent. Determinations of child custody are extremely fact specific. For example, the judge should not presume that mothers make better parents than fathers (although judges are human beings and some have their own biases). Despite the commonly held misconception that there are laws favoring mother’s rights to custody, it should be noted that more and more, fathers are being awarded primary physical custody of their children when the judge believes that it will be best for the children. This may be the result of more and more women becoming the primary breadwinner while more and more men are becoming stay-at-home dads. But do not be frightened. Each case is judged on its own merits and circumstances.
Across the United States, more and more parents are being granted joint custody or shared responsibility for their children. In some states, such as Florida, the presumption is that it is better for parents to have “shared” custody. In other states, such as Georgia, the court does not have that presumption, but judges are required to look at the option of joint custody. The national trend is for judges to consider joint custody or shared parenting responsibilities in almost all divorce cases.
Protect Your Children: Hire an Attorney
It is important to try to agree on as many issues as you can with your spouse before trial. It will benefit both your children and yourselves not to extend a custody case any longer than it needs to be. The chances are high that you will not agree on everything. But you may continue to agree on many things that you and your spouse have always agreed upon. The best thing you may hope for is that the children survive this difficult time and get back to leading happy, productive lives in a less-than-ideal situation. Contact a Kessler & Solomiany, LLC attorney today by calling (404) 688-8810 or chatting with a representative live. Our experienced team is here to make the experience as smooth and quick as possible.
The following is one of the latest versions of the new bill but Kessler & Solomiany, LLC does not guarantee its accuracy.
TITLE 19. DOMESTIC RELATIONS CHAPTER 9. CHILD CUSTODY PROCEEDINGS
ARTICLE 1. GENERAL PROVISIONS
O.C.G.A. § 19-9-3 (2007)
§ 19-9-3. (For effective date, see note.) Discretion of judge in custody disputes; right of child 14 years old or older to select custodial parent; consideration of child’s educational needs; review of visitation rights; grandparent visitation; policy; retention of jurisdiction; attorney’s fees; filing of domestic relations final disposition form
(a) (1) In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.
(2) The judge hearing the issue of custody shall make a determination of custody of a child and such matter shall not be decided by a jury. The judge may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child should be awarded. The duty of the judge in all such cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.
(3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) 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;
(C) 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;
(D) Each parent’s knowledge and familiarity of the child and the child’s needs;
(E) 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;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) 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;
(H) 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;
(I) The mental and physical health of each parent;
(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
(N) 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;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.
(4) In addition to other factors that a judge may consider in a proceeding in which the custody of a child or visitation or parenting time by a parent is at issue and in which the judge has made a finding of family violence:
(A) The judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
(B) The judge shall consider 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;
(C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of custody determination; and
(D) The judge shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.
(5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.
(6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child’s desires shall not be controlling. The judge shall further have broad discretion as to how the child’s desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.
(7) The judge is authorized to order a psychological custody evaluation of the family or an independent medical evaluation. In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith.
(8) If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child’s education, health, extracurricular activities, religion, and any other important matter shall be decided. Such order shall be filed within 30 days of the final hearing in the custody case, unless extended by order of the judge with the agreement of the parties.
(b) In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child.
(c) In the event of any conflict between this Code section and any provision of Article 3 of this chapter, Article 3 shall apply.
(d) It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.
(e) Upon the filing of an action for a change of child custody, the judge may in his or her discretion change the terms of custody on a temporary basis pending final judgment on such issue. Any such award of temporary custody shall not constitute an adjudication of the rights of the parties.
(f) (1) In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.
(2) In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent’s visitation rights or parenting time.
(3) Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.
(g) Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney’s fees made pursuant to this subsection.
(h) In addition to filing requirements contained in Code Section 19-6-15, upon the conclusion of any proceeding under this article, the domestic relations final disposition form as set forth in Code Section 9-11-133 shall be filed.