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Visitation

Child Custody in Georgia – Summer vs. School Year

Monday, September 16th, 2013

There is often a big difference between custody and visitation arrangements in the summer and those during the school year. During the summer, the kids are not in school and many families take vacations. These custody and visitation arrangements, therefore, often allow the children to have extended time with each parent. For example, each parent may have a two-week period with the children during which that parent can take the children on vacation or just have quality time together as a family at home. For parents who live in different cities, summer is a good time for the children to spent substantial time with the noncustodial parent, since the more rigid school schedule may not allow the children to travel to see that parent very often.

During the school year, naturally, there must be a different custody and visitation arrangement to allow the children to see both parents while also meeting the demands of the school year. In addition to school schedules and obligations, children often have extracurricular activities to which they must be driven or that a parent must attend. Often, the noncustodial parent will have the children every other weekend and one night during the week. This offers consistency to the children, while allowing them time with each parent during the school year.

It is important that you consult your Final Divorce Decree or Settlement Agreement to make sure you are clear about when the children will be in your custody. A good time to pull this document out is at the beginning of the summer and the beginning of the school year as these are the times that the custody and visitation arrangements often change from what everyone has gotten used to.

If you find that the original custody and visitation arrangement is not working as well as the children grow older and their schedules change, you can always file a Petition for Modification.Hopefully, you and your ex-spouse can work together to come up with a new schedule that works for everyone. If you are unable to work together, you would be best served consulting with an experienced family law attorney to help you through the negotiation.

Child Support and Visitation

Monday, June 24th, 2013

In Georgia, the duty to pay child support has nothing to do with visitation. Thus, visitation cannot be withheld for failure to pay child support. Consider a situation where a final divorce decree awarded primary physical custody to the mother, with the father paying child support and receiving generous visitation with his children. If the father falls behind on his child support obligation, he is in contempt of the court order. The proper remedy for the mother is to file a Petition for Contempt against the father.

Often times, rather than filing a Petition for Contempt, the mother may seek to “retaliate” against the father for failing to pay child support by refusing him visitation with the children. This is not a recommended remedy, as it will result in the mother also being in contempt of the court order, and the father could file a Petition for Contempt against her for failing to abide by the visitation schedule.

Conversely, if your ex-spouse is refusing to honor the visitation terms of the final divorce decree, you cannot retaliate by refusing to pay child support. While it is certainly frustrating when your ex-spouse ignores or disobeys the terms of the court order, you will look much better to the court if you come in with your hands clean and are fulfilling your obligations under the order.

Using a Parenting Coordinator in a Georgia Divorce

Friday, April 20th, 2012

Although you and your spouse are ending your marriage, if you have children together then you will always have a relationship–you will always be parents. It is important to remember that the children must always be the focus of the divorce, and the goal should be to minimize the impact of the divorce on your children. However, divorcing parents often disagree about parenting issues like discipline, religion, education or household responsibilities. Disagreement about parenting issues can further escalate the tension in your relationship with your spouse and can be detrimental to your children. In situations in Georgia where a majority of the conflicts during the divorce are related to the children and differences in parenting style and philosophy, a parenting coordinator can be an invaluable resource.

A parenting coordinator is a psychologist or mental health professional who can help you and your spouse discuss parenting issues, determine what an appropriate parenting schedule will be for your time with the children, and help you come to a consensus about how you will be effective co-parents in the future. He or she can help resolve parenting issues that arise during your divorce,and can help you and your partner work together to reduce your conflicts related to the children. The parenting coordinator typically does not attempt to resolve marital issues, but assists with disagreements related to parenting only.

A parenting coordinator is not a guardian ad litem, who is a representative of the Court appointed to determine the best interests of the children, but one who works directly with the parents to attempt to resolve parenting issues outside of Court. With the Court or the parties’ consent, he or she may make decisions for the parties on parenting or child-rearing issues, but parenting coordinators do not give legal advice. The value of the parenting coordinator is in resolving issues outside the courtroom, and can help you set establish a working relationship that allows you and your former spouse to be effective co-parents not only until the end of the divorce, but throughout your children’s lives.

If you have questions about a parenting coordinator, or if you are a parent with concerns about how to work with your spouse during the pendency of your divorce, contact Meriwether and Tharp.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

Self-executing visitation provision in Georgia divorce held invalid

Monday, January 23rd, 2012

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final decree of divorce. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded primary physical custody of the parties’ daughter to the mother, with supervised visitation to the father. Id. The parenting plan further provided that the father’s overnight visitation must be supervised by “a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary.” Id. Under the parenting plan, the therapist had the additional authority “to determine how supervised visitation should be phased out over time and when supervision may end.”Id. The father appealed, contending that the “provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist.” Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Court held that “a self-executing change in custody/visitation that constitutes a material change, i.e. is one‘that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,’ generally violates Georgia’s public policy founded on the best interests of the child.” Id. at 3. The responsibility for making this decision must be made by the court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father’s visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, “it is an invalid self-executing change of visitation” and must be stricken from the final divorce judgment. Id. at 4.

Parenting plans in Georgia

Friday, November 25th, 2011

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence,parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. ata (3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

Recent Georgia divorce case phases out supervised visitation through three month transition period

Friday, November 11th, 2011

The Supreme Court of Georgia recently heard a case dealing with supervised visitation that was to be phased out through a transition period. In Sigal v. Sigal, before filing for divorce, the mother first filed a petition for separate maintenance. Sigal v. Sigal, S11F0835 (2011). In the decree from that case, the mother was granted primary custody and the father’s visitation was required to be supervised as a result of his documented drug and alcohol abuse problems. Id. at 2. The mother subsequently filed for divorce and “asserted that all issues regarding custody, visitation and support of the children were fully adjudicated in the decree of separate maintenance.” Id. The father disagreed and sought “reasonable and fair unsupervised visitation” with the children. Id. After hearing testimony from both parties, the trial court orally announced its ruling, holding that the father could have unsupervised visitation provided that he took and passed a drug test within the next 45 days and provided that the unsupervised visitation be phased in over a three month transition period. Id. at 3-4.

For reasons unknown, the final divorce decree was not entered for several months, though the visitation provision was entered nunc pro tunc from the date of the hearing. (This means that the visitation provision went into effect as of the date of the hearing, rather than the date of the final divorce decree). Id. at 4-5. As a result, the three-month transition period had already expired by the time the final decree was entered. Id.

For this reason, the mother appealed, and the Supreme Court of Georgia reversed the trial court’s ruling. The Court held that “the nunc pro tunc action as to the gradual transition provision in the decree here did not serve to conform the decree to the truth or the justice of the situation as originally intended by the trial court.” Id. at 7. “Rather, it had the exact opposite effect by eliminating the truth and justice recognized by the trial court…regarding the need of these children for a gradual transition period from supervised to unsupervised visitation with their father.” Id. at 7-8. For this reason, the trial court abused its discretion in making the visitation provision nunc pro tunc.

Divorce and Special Holiday Visitation

Friday, September 30th, 2011

When divorcing parents are trying to reach an agreement on holiday visitation, the holidays most often discussed are Thanksgiving, Christmas/Winter Break, Easter/Spring Break, Mother’s Day and Father’s Day. This is not an exhaustive list of holidays, however, and there may be some additional special days that you want to discuss when working out a visitation schedule.

For example, if your extended family has a yearly reunion on July 4 each year, it may be important for you to have the children with you on this date every year, or at least as often as possible.In addition, for those families who celebrate the Jewish High Holidays, it may be important to those parents to work out an arrangement to split the holidays each year, or for each parent to have time with the children on each holiday.

Every family is different, and a holiday that is not important to one family may be very important to another, and vice versa. If a certain day means a lot to you and/or your former spouse, make sure you work out the details and include them in your settlement agreement to minimize later disagreements.

Parenting websites can help parents sharing custody of children in Georgia

Monday, September 19th, 2011

Our Atlanta divorce attorneys have recently learned of some interactive websites that may be helpful for parents sharing custody of their children in Georgia. In particular, these websites are a helpful resource for parents who are struggling to communicate effectively or just need help staying organized.

OurFamilyWizard.com, JointParents.com and ParentingTime.net offer a range of features such as a visitation calendar, an expense log, daily journal, photo sharing, and a messaging forum. Visitation calendars allow parents to easily see who has visitation and the children’s schedule. The expense log tracks who incurred an expense, the type of expense, the other parent’s share, and whether that expense has been paid. Journals, photo sharing, and messaging forums provide a space for parents to communicate to each other about their children’s activities, progress in school, etc. All calendars, expenses, photos and messages can be kept and recorded for future reference and may be helpful if there is future litigation. Some of the websites, like OurFamilyWizard.com, provide free professional or third party accounts for attorneys, counselors, teachers, or grandparents.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

Order for supervised visitation upheld by Georgia Court of Appeals

Friday, August 12th, 2011

The Georgia Court of Appeals recently upheld an order for supervised visitation, despite the father’s allegations of 17 errors by the trial court. Gottschalk v. Gottschalk, A11A0565(2011). In that case, the parties consented to joint legal and physical custody of their children in their divorce action, with detailed visitation provisions in the final decree. Id. at3. About a year later, after the father’s arrest, the mother filed a petition seeking supervised visitation for the father. Id. The trial court appointed a custody evaluator, who was to write a report to be distributed ONLY to the court, guardian ad litem and the parties, except upon the court’s express permission otherwise. Id. at 4. During the hearing, the trial court discovered that the father’s expert witness had received a copy of the custody evaluation, and barred the expert from testifying about it since the father had not received express permission to disclose it to him. Id. at 7. The trial court ultimately granted the petition for supervised visitation, holding, with significant factual support, that the father’s “conduct was potentially dangerous for the children.” Id. at 9. After the father’s motion for a new trial was denied, he appealed.

Several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. In one enumeration of error, he alleges “the trial courterred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used.” Id. at 17-18. The Georgia Court of Appeals disagreed, holding that the orders were “very clear that the report could be disseminated only to the parties, attorneys,and guardian unless otherwise allowed by the court,” and the language “is not susceptible to any other interpretation.” Id. The Court of Appeals also pointed out that parties consented to the order, and “both sides had previously sought and obtained permission to reveal the contents for the report to specific people.” Id. Thus, the Court was not at all sympathetic to this allegation. If the father had just gone through the proper procedure, his expert likely would have been permitted to review the report and testify about it.

Georgia Child Custody – Day to Day Decisions

Friday, July 15th, 2011

If your divorce is final in Georgia, your divorce decree will state who has legal and physical custody of the children. Legal custody deals with decision-making, and physical custody generally reflects with which parent the children will spend most of their time. Often, the major legal custody categories (health, education, religion, and extracurricular activities) are split between the parents, with one parent having final decision-making authority on two categories and the other parent having final decision-making authority on the other two. The divorce decree usually states that the parties both have access to all records and should try to work together but, if they cannot come to an agreement, the final decision-making authority kicks in.

Day-to-day decisions are handled differently, however. In Georgia, a final divorce decree is required to state: “Each parent shall make decisions regarding the day-to-day care of a child while that child is residing with that parent including any emergency decisions affecting the health or safety of a child.” Thus, if a child gets injured while in the custody of the parent who does not have final decision-making on health issues, that parent can still seek treatment for the child. Parents should use their common sense in situations such as this and keep the other parent informed of any major decisions made that affect the children.