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Child Custody: Which Parent Should Get Primary Physical Custody?

During a divorce or child custody matter, one of the most important questions asked is "will I get primary physical custody of my child?" In other words, who will have the child the majority of the time? In determining who will be the child's primary physical custodian in Georgia, a court will consider several factors which take into account the child's best interests. O.C.G.A. § 19-9-3(a)(3) lists 17 factors that the court should consider when determining what is in the best interests of the child. What other factors could the court consider when determining the best interests of the child, and where do these factors fit on O.C.G.A. § 19-9-3(a)(3)'s list of 17? A recent Georgia case analyzed what factors could be considered when determining what is in the best interests of the child and where these factors would fit on O.C.G.A. § 19-9-3(a)(3)'s list of 17.

In Rose v. Rose, Wife was temporarily awarded primary physical custody of the child and the court stipulated that the child would attend school in Wife's school district. Rose v. Rose, 294 Ga. 719 (2014). However, at the final divorce hearing, Husband decided to fight for primary physical custody of the child. See id. at 719-20. Husband stated that his Wife was a good mother, however he claimed that he fed the child healthier home cooked meals while Wife fed the child fast food and processed foods. Id. at 720. Husband also argued that, "wife's work schedule required the child to attend an after school program; whereas he works from home several days a week and, therefore, he would be able to retrieve the child from school and spend time with him most afternoons." Id. "Finally, husband testified that the child behaved better in his presence than in the presence of wife and that after the child moved to [Wife's school district] he 'started to talk back a lot more.'" Id. After the hearing, the court awarded primary physical custody to Husband, but the court did not make findings of fact and conclusions of law. Id.

After the court's decision, Wife appealed arguing that the trial court erred in awarding primary physical custody to Husband because it focused on factors other than the best interest of the child. Id. Specifically, Wife asserted that the trial court's custody decision was based solely on the ground that Husband's school district provides a better educational opportunity for the child. Id. Notwithstanding, the appellate court found ample evidence to support the award of primary physical custody to Husband based on the best interest of the child standard, for example, there was "evidence that husband's employment schedule enables him to devote more time to the child, see OCGA § 19-9-3 (a) (3) (K), that the child is better behaved when he is reared by husband, see OCGA § 19-9-3 (a) (3) (C), and that husband provides more nutritious meals for the child. See OCGA § 19-9-3 (a) (3) (E)." Id. at 721. In light of this evidence, the appellate court found that the trial court did not abuse its discretion by awarding primary physical custody to Husband. Id. Further, the appellate court noted that the temporary order giving Wife temporary primary physical custody did not require the trial court to reach a decision in Wife's favor. Id.

By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC


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