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The Four Parts of Georgia Divorce: Child Custody

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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).

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