Atlanta Child Support Attorneys

The divorce process can be a long, arduous, and often a very painful experience for everyone involved. This is especially true when the parties have a minor child or children. While no divorce is the same, if there is a child involved they all have one common thread—the child is usually the innocent party and should have the right to maintain as normal of a life after the separation of his or her parents as possible. To attain this goal, every state requires parents to support their children with both monetary and physical care. Traditionally, the duty of monetary support rested primarily on the father, while the duty of care was placed on the mother. Today, however, the duties of support and care rest on both parents.

Randy Kessler, the founder of Kessler & Solomiany, LLC, has been an attorney for more than two decades. As the founding partner of our family law firm, he has represented some of the most famous people in the world, including world-class athletes, the business elite, music moguls, and blockbuster entertainers. Yes, the team is referred to as “divorce lawyers”, but we prefer to call ourselves a “family law firm”, people who can help return freedom, peace, and predictability to deserving spouses and families. We long for a day when our services will no longer be in high demand; until that day, however, we can only give you our assurances that there is hope and your feelings of confusion, anger, sadness, and loss are only temporary. You owe it to yourself and your family to be fully prepared. These steps include finding a lawyer, developing a budget, filing and serving divorce papers, determining costs, taking deposition testimony, seeking custody of children, and dividing assets. Check off that first step by calling the Kessler & Solomiany, LLC at (404) 688-8810 today.

Why You Need an Attorney

A lawyer can examine the facts of your case and give you an informed and honest opinion about your chances of receiving a share of your marital assets, custody of your children, support payments (child support or alimony), and many other aspects of your divorce. For example, a lawyer may tell you that in your state, judges are unlikely to grant ownership of a house to a spouse who has already vacated the premises to move into an apartment with their new partner. However, a lawyer cannot look into your eyes and say, “You do not really want to get a divorce. You are still in love your spouse. Give her one more chance.” If that is what you want to hear, you should consult a marriage counselor or your best friend. If you want to know if you can expect a judge to divide your spouse’s stock assets and give you an equitable portion, talk to an attorney.

To put it simply, you really do need a lawyer. A good divorce attorney will give you honest advice, based on your best interests. Below is a list, by no means exhaustive, of five important qualities your lawyer should possess:

  • They should be someone you can talk to candidly
  • They should be someone who listens when you have something to say
  • They should make you feel comfortable about the divorce process
  • They should be willing to answer any questions you have
  • They must be willing to discuss on your first visit the costs associated with your case, including fees for legal services and the costs of each procedure

The characteristics highlighted above focus on one basic principle: At the heart of every attorney-client relationship there must be complete disclosure of confidential and often embarrassing information. Complete disclosure will only occur if you feel comfortable with the person you choose to be your attorney. Only bad things can happen if your lawyer is misinformed or you misunderstand the consequences of an action.

While Child Support Means

Child support is a payment of money from one parent to another for the support of their children. Each state has its own specific guidelines for determining which parent will pay (usually the non-custodial parent) and how much they will be obligated to pay. In any divorce involving minor children, the parties will be required to disclose their financial status. The court in turn will determine how much each party will pay based on that and other information. The following is a list of several sources of revenue that most courts consider to be “income” for purposes of determining child support:

  • Hourly wages and salaries (including tips and overtime)
  • Alimony payments received
  • Stock dividends
  • Royalties
  • Income from rental properties
  • Social Security benefits
  • Pension and retirement plan benefits, military and unemployment benefits, government subsidies, gifts and prizes, and trust disbursements

Generally, the parent with the child support obligation will pay on a monthly or bi-monthly basis. If one parent fails to pay, the other parent has a legally enforceable judgment against the non-paying parent that they can use to obtain a wage assessment (garnishment) or sometimes even have the non-paying parent put in jail for failure to pay. However, it is important to note that if one parent fails to pay support the other parent should not withhold visitation. Instead, you should seek court involvement or other collection measures. The non-paying parent can be put in jail for an indefinite period of time for his or her failure to pay child support, often until the full or partial amount is paid. However, if you choose to withhold visitation (called “self help”), then you may very well also be put in jail—not just your non-paying former spouse!

Frequently Asked Questions

Many people have the same questions when it comes to child support. We’ve provided a few here, although it’s likely you won’t find all of the answers to your questions below. Contact us at (404) 688-8810 with additional questions.

Is it true that men always pay child support?

Historically, men were the breadwinners of their families. Consequently, men were tacitly assigned the duty of paying child support. However, with the influx of women into the workforce—a direct result of the women’s movement beginning in the 1960s—courts now take a “gender neutral” stance regarding who must pay child support. Section 309 of the Uniform Marriage and Divorce Act (UMDA), a guidepost that many states have adopted and modified to make their own, gives trial courts discretion to order either or both parents to pay an amount reasonable or necessary for the child’s support. Typically today, the non-custodial parent (the parent who does not have physical custody of the child) is required to pay child support to the custodial parent.

Should I be aware of any tax implications?

Yes. First, if you have the child for greater than half of the year (182.5 days), then you are the “custodial parent” and you may likely claim the child as a dependent on your tax return unless the parents agree otherwise or unless your court is authorized to, and does permit the secondary custodian to claim the tax benefits. Consult with a certified public accountant or other tax expert for this and all tax-related issues. Second, child support payments are generally not deductible by the obligated parent nor are they included in the receiving parent’s income (the opposite is true for some forms of alimony). Finally, if the custodial parent pays more than half of the costs of maintaining the household, then the custodial parent may qualify as the “head of household” for tax advantages. However, these general rules are void if the parents file jointly. Stated differently, to take advantage of these tax benefits the parents may wish to file individually. You should consult with and reply upon a tax expert, as most lawyers, including this author, are not tax experts.

How do courts determine how much a parent must pay in child support?

Unlike most areas of law, family law is extremely intuitive and practical. All states require the divorcing spouses to follow “child support guidelines,” a formulaic calculation that weighs numerous factors relating to the needs and expenses of the child. Although the states have discretion regarding what factors may be considered, courts generally will look at: (1) the needs of the child, (2) the standard of living established by the parents, (3) each parent’s income and overall financial situation, (4) the earning capacity of both parents, and (5) the age of the child. Of course, this list is not exhaustive and the judge may look at a number of other factors. Each state has its own specific guidelines.

Contact Us

Parents have a duty to support their offspring unless the child is emancipated, the parent or child dies, or the child reaches the age of majority, which is usually somewhere between eighteen and twenty-one in most states. The attorneys of Kessler & Solomiany, LLC fight hard for our clients—their concerns become our concerns—and we care about each of them during their case and, even more importantly, what will happen to them after their agreements become final. Contact us at (404) 688-8810 to get started.

Marvin Solomiany on Custody and Jurisdiction

Mr. Kessler’s appearance on HLN yesterday on the Huma v. Weiner divorce 4:40

Kessler on HLN discussing Paternity fraud – Arizona case regarding child support

Kessler on CNN dicussing DOMA

Kessler on HLN News Now discussing biological dad raising twins with partner

Modification of Custody/Visitation FAQs

What is Joint Custody?

Joint custody means that both parents have the right to make decisions affecting the children and the right to have the children live with them. Obviously this is vague. Thus with respect to decision making, the court (or the parties if they can reach an agreement) will either award sole legal custody to one side so that if the parties do not concur about a child related decision, one parent can make the decision, or, the court may award joint legal custody, but designate one party to make the final decision on some or all of the decisions (education, medical, religious, extra curricular and so on). With respect to physical custody, there must be more specificity than just “joint” or “sole” custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

What is Legal Custody?

Please review the answer to the FAQ about Joint Custody. Legal custody is the term used for the parent who is authorized to make the decisions regarding the child’s welfare (education, medical, religious, extra curricular and so on). Usually there is a requirement that the parties try to cooperate to reach mutual decisions, but if this is unsuccessful, the legal custodian makes the decisions. It is often helpful to designate both parents as joint legal custodians so that physicians, school administrators and the like will have no reason to withhold copies of the children’s records from either party.

What is Physical Custody?

Please review the answer to the FAQ about Joint Custody. Physical custody is the term used for the parent with whom the child(ren) are to live with the majority of the time. Regardless of whether a parent is awarded sole or joint physical custody, a schedule of dates and times for the child(ren) to be with each parent should be prepared and made a party of any custody order. As mentioned in the earlier FAQ, there must be more specificity than just “joint” or “sole” custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

How does the Court decide custody?

In an initial custody proceeding (such as a divorce, or legitimation case), the court must look at what is in the best interest of the chidren. Once the Court has awarded custody, it can only be changed if there is a change of conditions (which has a legal definition spelled out in various cases).

Can the court use a Guardian Ad Litem (GAL) in custody cases in Georgia?

Yes. Such a guardian would need to be trained before they can be appointed.

Can the court use a psychologist to help in it’s decision?

Yes. The court may appoint a psychologist to do various types of evaluations such as a custody evaluation or fitness evaluation.

Can grandparents be awarded custody or visitation rights?

Yes, but the legal burden is much higher for grandparents which means it is harder for grandparents to achieve custody or visitation rights than parents. If either or both parents are fit, grandparents will likely not be awarded custody and may have a hard time achieving visitation rights.

Where can I read the new custody statute?

Click here for (HB369 – Custody Bill).

My 14-year-old daughter told me that she now wants to live with me instead of her mother. Can she?

A child fourteen (14) years or older may elect the parent with whom he or she wants to reside, and the court will likely defer to his or her election, so long as the Court agrees that this is in the best interests of the child. For cases filed before January 1, 2008, the Court had to honor the election unless the chosen parent was unfit.

How often can a 14 year old change their mind?

After January 1, 2008, such an election can only be made once every two years.

Can I seek a modification of custody requesting that all three of my children live with me based on my fourteen (14) year old (oldest) child’s election?

With respect to the younger siblings, if they also desire to live with you, your older child’s election in addition to the younger children’s desires may provide the basis for a change of custody of all three (3) children. Each case is fact specific, and it will depend on the details of your situation.

My twelve (12) year old son has told me that he wants to live with me instead of his father. Is his desire sufficient to change custody to me?

His desire alone is probably not sufficient to change custody. While Georgia courts are authorized to consider the desires of a child between the ages of 11 and 13, in order to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. The desire of a 12 year old child standing alone would probably not meet this test.

Recently, my eight (8) year old son, who lives with his mother, has been doing poorly in school and his teachers have reported to me that he often comes to school in dirty clothes and wet hair. Can I seek a change of custody for these reasons?

Generally, in a case between parents, to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. If your son’s performance and appearance in school has changed since custody was awarded to his mother, you may have a basis to file for a change of custody. Each case is fact specific, and it will depend on the details of your situation.

What factors does the court consider when determining whether to change a prior custody order?

Generally, in a case between parents, to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. A slight change in condition will not authorize a change of custody, and each case is fact specific.

What factors does the court consider when determining whether to change a prior visitation order?

Generally, in a case between parents, to authorize a change of visitation, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody and visitation award. However, the court has the authority to review and modify visitation rights once every two years from the date of the original order without the necessity of proving any change in condition, whether slight or substantial, of either party or the children.

How often can I file to change custody? Visitation?

An action to change custody and/or visitation can be brought at any time following the most recent custody order, provided you can prove that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody and visitation award. With respect to visitation only, the court has the authority to review and modify visitation rights once every two years from the date of the original order without the necessity of proving any change in condition, whether slight or substantial, of either party or the children.

My ex-husband recently, within the last six months, moved from Georgia to California with our three-year-old daughter. Where should I file an action to change custody to me?

Generally, if a court in the State of Georgia issued the most recent order regarding the custody and visitation of your child, Georgia is the proper place to file. However, the Georgia court may decide that Georgia should not handle the case if there is no longer a significant connection with Georgia and substantial evidence is no longer available in Georgia.

If I file an action to modify custody, can my ex-spouse be ordered to pay my attorney’s fees?

For cases filed before January 1, 2008, generally, no. Unless your ex-spouse has made a frivolous claim, been stubbornly litigious, or has otherwise acted in bad faith during the litigation, in which case the court has the power to award attorney’s fees and expenses of litigation, the court had no authority to award attorney’s fees in an action solely to modify custody and/or visitation. However, if your case includes a claim for modification of child support incident to the change of custody, the court may award attorney’s fees, costs and expenses of litigation to the “prevailing” party with respect to the child support claim, regardless of who files the case, and can also require the party seeking a modification of child support to pay your ex-spouse’s attorney’s fees and expenses for having to defend the case. Ultimately, it’s entirely within the court’s providence to award fees or not in such a case. For cases filed on or after January 1, 2008, attorney’s fees may be awarded by the court from one party to the other.