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Child Custody

What Issues Should be Addressed in a Settlement Agreement Including Child Custody?

Thursday, June 12th, 2014

For divorcing parents, often the most important issue to work out is who will have custody of the children, and how visitation will work for the other parent.  Generally, when drafting a settlement agreement, the following custody issues should be addressed:

  1. Primary physical and legal custody
  2. Decision making authority
  3. How the parties will communicate regarding the children
  4. Weekly visitation
  5. Summer visitation
  6. Holiday visitation
  7. Telephone/email visitation

When reviewing a proposed settlement agreement, it is important to remember that every divorce is different, and every set of parents and children are different.  Therefore, after hitting the high points listed above, it will likely be necessary to modify or add to terms in the proposed agreement.  For example, you will want to ensure that the agreement provides for a visitation schedule for all holidays that are important to you.  While Easter may be very important to one family, a Jewish family will likely want to make sure Passover visitation is included.

In addition, if substance abuse is an issue in the divorce, a parent will want to make sure there is an alcohol/drugs clause in the agreement.  Also, if one parent travels a lot for work, the other parent may want a right of first refusal for visitation, rather than having the children stay with a babysitter.

If you and/or your spouse are working with attorneys in your divorce action, you will likely be shown a template settlement agreement as a starting point.  Remember this is just a first draft and it can be modified to suit the needs of your particular family.  It may be helpful to take some time by yourself to think about what is most important to you and really think through how you want to live your life after the divorce.  The more prepared each party is, the better negotiations will go.

 

 

 

 

 

 

 

 

 

 

 

The Four Parts of Georgia Divorce: Child Custody

Tuesday, April 1st, 2014

Continuing from our previous post entitled “The Four Parts of Georgia Divorce,” child custody in Georgia is comprised of three main components: physical custody, legal custody and parenting time.

Physical Custody

Physical custody refers to which parent the child will reside with primarily post-divorce. Physical custody may be determined by the judge presiding over the case, by the parents themselves via a parenting agreement or if appropriate and under certain circumstances, by the election of the child or children involved. In Georgia, children of a certain age may make an election as to which parent they wish to be their physical custodian. O.C.G.A. § 19-9-3 (a)(5)-(6). Regardless of how the determination is made, the best interests of the child or children involved must be considered by the court before any physical custody arrangement is ordered. O.C.G.A. §§ 19-9-3(a) and 19-9-5 (a)-(c).

Irrespective of whether the court, the parents or the child makes the determination of regarding custody, Georgia law allows for three basic models for physical custody of a child: 1) one parent being granted sole physical custody, 2) one parent being granted primary physical custody, with the other being granted secondary physical custody or 3) both parents being granted joint physical custody.

Legal Custody

In Georgia, the parent granted legal custody of a child has the authority to make major decisions concerning the child or children involved. These major decisions include, but are not limited to decisions concerning a child’s education, health, extracurricular activities, and religion. Legal custody may either be granted to one parent, as the sole legal custodian, or legal custody may be granted to both parents in a joint legal custody arrangement. If a court does order joint legal custody in a case, the court’s order must set out “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.” O.C.G.A. § 19-9-3(a)(8). Often, if a court awards parents joint legal custody of their child or children, the court will assign each parent the major decisions he or she has the authority to make. For example, one parent may be granted the sole decision making authority regarding the child’s education, while the other parent retains sole decision making authority regarding all other matters affecting the child. Even if the decision making authority is not shared equally by both parents, according to Georgia law, both parents may still have access to all of the records and information concerning their communications and other matters.  O.C.G.A. §19-9-1 (b)(1)(D).

Similar to physical custody, the determination of which parent will be a child’s legal custodian may be made by the judge presiding over the case or by the parents of the child via a parenting agreement. However, unlike physical custody, Georgia law does not allow for children to determine which parent will be responsible for their legal custody. Because physical and legal custody are two distinct concepts, a court may order the parents to share joint physical custody, but order that legal custody be held solely by one parent. Alternatively the court may order that the parents share both joint legal and joint physical custody of their children.

Parenting Time/ Visitation

Although visitation rights are normally dealt with simultaneously with custody issues, visitation is not the same thing as custody. O.C.G.A. § 19-9-22(a). Visitation, otherwise known as parenting time, is normally granted to the non-custodial parent, and includes set times during which the non-custodial parent may visit with their minor child or children. Georgia has a public policy that encourages continued contact between children and their parents, even after divorce. O.C.G.A. 19-9-3(d). Thus, Georgia courts rarely ever deny a non-custodial parent visitation unless the court finds that it would be injurious to a child or not in that child’s best interest to have contact with the non-custodial parent. Schowe v. Amster, 236 Ga. 720 (1976) and Shook v. Shook, 242 Ga. 55 (1978).

 

What is Supervised Visitation and When May it be Ordered?

Monday, March 17th, 2014

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Supervised visitation is not a concept that is unique to Georgia. There are several states that recognize the concept of supervised visitation in situations in which the court presiding over the matter deems is appropriate. In Georgia, supervised visitation may be defined as visitation that occurs between a non-custodial parent and his or her child that is monitored or supervised by a third party.

Generally, the third parties that serve as monitors during supervised visitation are social workers or other qualified child care professionals that monitor the well-being of the child and the interaction between the parent and the child during visitation. Under certain circumstances however, family members or other household members may serve as supervisors as long as certain guidelines are followed. O.C.G.A. § 19-9-7(d). The supervisors normally do not play an active role in the visitation session, but instead observe the visitation session quietly and make observation notes concerning the attitude and actions of both the child and the parent during visitation. In most cases, the monitor will only interrupt or intervene in a visit if the parent threatens the child’s safety or wellbeing.

Supervised visitation is usually court ordered in child custody matters where there are allegations of or prior instances of family violence, child abuse, neglect, drug abuse or alcohol dependence. See generally O.C.G.A. § 19-9-7. Because Georgia courts prefer for children to maintain ongoing relationships and have contact with both parents after a divorce or other family change, supervised visitation is ordered in lieu of completely denying one parent visitation with his or her child in matters where one parent has committed acts of family violence.

Although supervised visitation is normally court ordered, in situations where one parent’s ability to positively interact with his or her children independently is in question, parents may agree for that parent’s visitation to be supervised until that parent is able to positively interact with his or her child without supervision. In situations such as this, the parent may also choose the agency or supervised visitation provider that will facilitate the visits. Alternatively however, in instances where the supervised visitation is court order, the decision regarding who will facilitate the supervised visitation is often made by the presiding court, not the parties involved.

 

 

 

 

My Spouse Has Abused Our Children in the Past; Will He be Granted Custody or Visitation?

Wednesday, March 12th, 2014

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Depending on the particular circumstances of the case, it is likely that both parents will be awarded some visitation or parenting time with their children. In Georgia, a judge may award visitation or parenting time to a parent who has committed certain acts of family violence “only if the judge finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made.” O.C.G.A. § 19-9-7(a). In order to ensure that adequate provisions for the child’s safety have been made, the court may issue the following orders or place one or more of the following conditions on that parent’s visitation or parenting time:

(1) Order an exchange of a child to occur in a protected setting;

(2) Order visitation or parenting time supervised by another person or agency;

(3) Order the perpetrator of family violence to attend and complete, to the satisfaction of the judge, a certified family violence intervention program for perpetrators as defined in Article 1A of Chapter 13 of this title as a condition of the visitation or parenting time;

(4) Order the perpetrator of family violence to abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance listed in Code Section 16-13-25 during the visitation or parenting time and for 24 hours preceding the visitation or parenting time;

(5) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation or parenting time;

(6) Prohibit overnight visitation or parenting time;

(7) Require a bond from the perpetrator of family violence for the return and safety of the child; and

(8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or another family or household member.

O.C.G.A. §19-9-7(a)(1)-(8). The reason why Georgia courts may opt to allow visitation with one or more of the above outlined restrictions in lieu of simply refusing to award a parent with a history of family violence visitation or parenting time is that it is the public policy of Georgia to encourage and foster relationship between children and both parents. Put plainly, the court prefers for both parents to play a role in their children’s lives if at all possible. However, there are situations in which a parent may lose parental custody of his or her children. According to Georgia statutory law, the criteria for loss of parental custody in Georgia is:

“If a child is found under circumstances of destitution and suffering, abandonment, or exposure or if the child has been begging or if it is found that the child is being reared under immoral, obscene, or indecent influences which are likely to degrade his moral character and devote him to a vicious life and it appears to the appropriate court by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents or guardians of the child, it is necessary for the welfare of the child to protect the child from such conditions, the court may order that the parents or guardians be deprived of custody of the child and that appropriate measures as provided by law be taken for the welfare of the child.”

O.C.G.A. § 19-7-4.

If you are currently involved in a child custody or divorce matter and your spouse or ex-spouse has a history of family violence or child abuse, it is imperative that you contact a Georgia family law attorney with experience handling complex child custody maters to guide you through the process of determining what custodial arrangement will be in the best interest of your children.

It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues.

I Fear My Ex is Abusing Our Children During Visitation, What Can I Do?

Wednesday, March 5th, 2014

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It’s always a parent’s worst nightmare to learn that his or her child is being hurt, neglected or abused by another individual. This anguish is often compounded if the person who’s causing harm to the child is the child’s other parent. Often parents are unsure how to best deal with the situation, especially if the parents are ex-spouses or co-parents abiding by the terms of a court ordered visitation and child custody arrangement.

If you are in such a situation, where you know or have reason to believe that your child or children are being abused by your ex-spouse during visitation, there are steps that you can and likely should take to protect your children. First, if there is ever a situation where your children are at risk of imminent bodily harm or injury, contact the authorities immediately. Second, although it may be very tempting to do so, you should refrain from attempting to limit or interfere with your ex-spouses parenting time with your children, because doing so would be a violation of the court’s custody and visitation order and would subject you to a possible contempt citation. Although you may not interfere with the violation of the court’s order concerning parenting time, if you have concerns about your children’s safety while they are in the care or your ex-spouse, you should contact a Georgia child custody attorney as soon as possible to discuss filing an emergency petition for modification of custody. Filing an emergency petition for modification of custody and visitation will ensure that the court will hear and rule on the matter more quickly, which is essential in matters where the safety and welfare of children is involved.

I Have to Travel to Visit My Children. Can I Seek a Child Support Reduction?

Tuesday, March 4th, 2014

Very often upon divorce, one or both former spouses may relocate to another neighborhood, city or even another state. When relocation occurs, especially in cases where child custody is shared by both parents, it is necessary for one or both parents to travel in order to exercise parenting time. In situations where a non-custodial parent must travel a long distance to exercise visitation or parenting time, that parent often incurs significant travel expenses. Depending on the frequency of visitation, these travel expenses may become a substantial financial burden to a non-custodial parent who is also responsible for paying child support.

Fortunately, for non-custodial parents who must travel to exercise parenting time with their children, Georgia law regarding child support may offer some much needed relief in the form of a the Visitation Related Travel Expenses Deviation. According to Georgia child support law:

“If court ordered visitation related travel expenses are substantial due to the distance between the parents, the court may order the allocation of such costs or the jury may by a finding in its special interrogatory allocate such costs by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason for such move.”

 O.C.G.A. §19-6-15(i)(2)(F).

What the above sited law means practically is that non-custodial parents who must travel to exercise parenting time may seek a downward deviation or reduction to their child support payments. The purpose of this deviation is to ensure that non-custodial parents are not kept from exercising parenting time due to financial constraints. There are several other deviations that may be applied to a parent’s initial or presumptive child support obligation depending on the circumstances of the particular case. If you are a parent who must travel to spend time with your children, contact a Georgia child support attorney to discuss if seeking a visitation related travel expense deviation is right for you.

Do I Still Have to Pay Child Support if my Spouse and I Split Custody?

Monday, February 17th, 2014

 

This is a typical question asked quite regularly by parents who are deciding how to share custody of their children post-divorce. In fact, it is not uncommon for some parents to initially choose a split parenting arrangement, because of their belief that splitting custody will alleviate both parents to the obligation to pay child support. As these parents eventually find out however, split parenting does not automatically relieve either parent of the child support obligation.

In a nutshell, split custody or split parenting occurs when one parent obtains primary physical custody of at least one of the parents’ children, and the other parent obtains primary custody of at least one of the parents’ other children. See O.C.G.A. § 19-6-15 (a)(21).

Additionally, according to Georgia law, in split parenting matters separate child support worksheets must be prepared for each parent, a worksheet for the child or children for whom the father is the custodial parent and one for the child or children for whom the mother is the custodial parent.  See O.C.G.A. § 19-6-15(l). Thus, the child support obligations of each parent are not cancelled out by a split parenting arrangement, but in fact, in a split parenting arrangement, there is a high likelihood that both parents would be ordered to provide the other parent with some form of support.

How Can a Guardian ad Litem Help My Case?

Wednesday, February 5th, 2014

In Georgia, Guardians Ad Litem (GALs) are generally attorneys who are appointed by the judge presiding over a domestic relations matter concerning child custody to aid the judge in determining what custody arrangement would be in the best interests of the child or children involved in the matter. See Uniform Superior Court Rule 24.9(3). GALs are most often appointed by presiding judges in matters where there is serious disagreement between the parties regarding which parent would be the most appropriate primary caretaker or in situations where one party makes serious allegations of abuse or about the ability of the other parent to properly care for the child or children. Although GALs are generally appointed at the discretion of the presiding judge, parents may request that the court appoint a GAL by submitting a motion requesting such an appointment. In such a case, the parent would have to provide the court with the basis for the request.

If you’re a parent going through a divorce with children or a child custody matter in Georgia, and you feel as if the court has not been made aware of all the necessary to come to the best decision concerning the custody of your child or children, requesting that a GAL be appointed in your matter may help. If appointed, a GAL will investigate all aspects of the custody matter by reviewing relevant court documents and records concerning the child, interviewing the child or children involved directly among other things. This can be helpful as the GAL is able to speak with the child first hand and experience the circumstances of the case in a way that the presiding judge is unable to. Once the GAL has conducted a satisfactory investigation, he or she will present their findings to the court along with a recommendation concerning the appropriate custody arrangement. Although the appointment of a GAL may be beneficial in some matters, if you are considering requesting the appointment of a GAL in your matter please note that a GAL investigation may be extremely invasive and may prolong the duration of your case.

A Parent’s Visitation Rights May not be Limited Because of a Girlfriend/Boyfriend

Wednesday, January 29th, 2014

Has your ex-spouse recently began dating? Or, does he or she have a new girlfriend or boyfriend that you don’t approve of or simply don’t know well enough to feel comfortable entrusting your children with? If so, these are certainly natural feelings, but please know that although you may not feel comfortable leaving your children in the care of your ex-spouse’s new love interest, you may not unreasonably limit your ex-spouses visitation privileges or parenting time as a result.

It is the express public policy of the state of Georgia to “encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.” O.C.G.A. § 19-9-3 (d). Thus, a divorced parent has the right to access and visit his or her child, and this right may only be limited under exceptional circumstances. See Griffin v. Griffin, 226 Ga. 781, 784 (1970). And, although some divorced parents may disagree, according to the Supreme Court of Georgia, the fact that one ex-spouse or co-parent has a significant other and wishes to have that significant other present while he or she exercises parenting time is not an “exceptional circumstance” warranting any limitation on visitation. Brandenburg v. Brandenburg, 274 Ga. 183 (2001). Put plainly, no parent can unreasonably deny or limit another parent’s visitation solely because that parent has a new girlfriend or boyfriend unless other extenuating circumstances exist.

Celebrity Divorce Chronicles: Taye Diggs vs. Idina Menzel

Thursday, January 16th, 2014

After ten years of apparent marital bliss, actor Taye Diggs and actress Idine Menzel announced their impending divorce on December 11, 2013. Although rumors suggest that infidelity is the cause of the couple’s separation, these rumors have not been confirmed.

Diggs, best known for his roles in films such as “The Best Man”, “How Stella Got Her Groove Back” and ”Equilibrium”, met Menzel, who is best known for her Tony Award winning role in “Wicked” in the mid 90’s as costars in the Broadway musical “Rent”. After years of dating, the couple wed in 2003 and later welcomed their son Walker into their family in September 2009.

According to representatives for the couple, “Idina Menzel and Taye Diggs have jointly decided to separate at this time. Their primary focus and concern is for their son.” Other than the statement released by the couple’s representative, not many details regarding the couple’s split have been released. However, seeing that it is apparent that their 4 year old son is extremely important to both parents, a custody battle may ensue. Hopefully, for the sake of their son Walker, both Diggs and Menzel will respectfully cooperate in determining the best custody arrangement for their son and work together to swiftly resolve their divorce and to be loving and effective co-parents.