How is Child Custody Determined?
How is Child Custody Decided?
If the parties cannot agree, the court looks to the child's best interest to determine child custody. Of course, what is in the best interest of a child is often hotly debated. Georgia law provides a set of relevant factors for the court to consider in reaching its decision as to what will best promote the child's welfare and happiness.
Factors for Determining Child Custody
Overview of Factors
While Georgia law provides a list of factors to determine child custody, it is important to understand that the law leaves it open to the judge to determine how to weigh the relative importance of each factor, based upon each case's factual findings determining custody. In other words, do not think of the factors as a set of scores that you add up to select the winner of custody. Instead, be aware that while a court may perceive that one parent is the better parent for most factors, the court makes the ultimate decision and could find any specific particular factor as controlling for its determination of custody.
As a practical matter, a child's safety is likely the most crucial factor when determining custody. Without the safety of a child, everything else takes an appropriate, secondary role. As such, the court will evaluate each parent's mental and physical health as well as the overall home environment when determining custody. Safety concerns include items such as physical abuse that might require limited or no parental involvement. Alcohol and drug abuse can also impact a parent's ability to nurture and provide essential safety for a child.
One factor for determining child custody is the emotional ties of a child. While this certainly includes the emotional ties between each parent and the child, it also consists of the child's emotional relationships with their siblings.
The ability and propensity of each parent to provide for their child is an essential factor for determining child custody.
In its most basic form, the court evaluates the ability of each parent to provide for their child's basic needs, such as food, clothing, and shelter. Depending upon circumstances, the ability to provide medical care and day-to-day needs can become equally important.
The evaluation as to the capacity, however, is not limited to basic needs. The court will also evaluate each parent's ability to serve their child's emotional needs. The ability to provide love and affection. The propensity to guide a child regarding the challenges they face in each stage of life.
Georgia law places importance on maintaining continuity when evaluating child custody decisions. Inherently with this factor is an evaluation of the historical involvement, or lack thereof, of each parent, as a factor for determining child custody. Georgia law makes it a factor for deciding child custody that the continuity of this historical involvement is maintained as much as possible.
The court will seek to evaluate each parent's historical involvement in the child's education and extracurricular activities. Did they go to parent-teacher conferences? Attend sporting events and other competitions? Coach a team?
Second, the court evaluates each parent's 'knowledge and familiarity' with the child. Is the parent familiar with their child's needs?
Depending upon age, a child's desires as to where they want to live can be a factor for determining custody. Children between 11 and 14 years of age are allowed to have input regarding the decision. Children 14 years of age and older can select where they want to live, subject to a determination that it is not in their best interest.
The 'willingness and ability' of each parent to encourage a relationship with the other parent can be a factor when a court evaluates custody. Similarly, consistently saying negative things about the other parent in front of a child can be evaluated as a reason that parent should not have custody.
Courts have a wide range of powers to appoint mental health care professionals to assist with child custody determinations. Since these individuals have more time and access to evaluate child custody determinations, they can provide essential guidance to a court regarding how to best determine child custody. Typically, they will review documentation, conduct investigations, interview key witnesses to gather context, and guide their recommendations.
A judge may order an evaluation to aid in the custody determination.
Guardian Ad Litem
A Guardian Ad Litem (GAL) is either an attorney or other qualified professional, such as a mental health professional, appointed by the judge to assist in a domestic relations case concerning the custody or welfare of a child.
Superior court judges presiding over cases involving child custody determinations may seek recommendations from outside sources in determining what custody or visitation arrangement will be in the best interest of the child or children involved.