Articles By Daniel W. Mitnick

Georgia Divorce Law: Child Custody Issues

With divorce on the rise across Georgia, child custody issues are also on the rise. In this firm alone, we have dealt with scores of divorces that involve custody disputes. Custody issues must be taken seriously at the trial court level because, while custody appeals are possible, trial court judges are allowed broad discretion to make decisions regarding the custody of children. This means, that on appeal, an appellate court will only reluctantly overturn the initial custody decision. Further, the more time that a child has lived in a certain home situation, the more hesitant the courts will be to remove that child from the seemingly stable situation. For this reason, it is important to seek an experienced family law attorney, accustomed to child custody matters, when facing child custody disputes in divorce proceedings. Modification of custody can be facilitated when you can show a material change in circumstance and best interest of the child is met.

Legal Standards Applied to Child Custody Issues

At the beginning of the twentieth century, children were usually awarded to their father in the unlikely event that their parents divorced. This was in recognition of the father’s “right” to his children’s labor and services. Children were considered property. Within the first few decades of the twentieth century, however, the pendulum began to swing in the opposite direction and mothers were routinely awarded custody. This was based on the “tender years” doctrine, which professed that children of tender years should be with their mother. Although these absolute rules brought predictability and consistency to divorce proceedings involving children, they often overlooked which parent was better equipped to raise the children and, more importantly, which home situation would provide the optimal situation for the children.

Between the years of 1960 and 1980, the rights of children in custody disputes began to emerge. Courts began appointing guardians ad litem to represent a child’s interest during the break-up of a marriage. The guardian’s job was to ensure that the child’s interests were protected when the courts determined which parent should have custody of the children. During this same time period, family courts and judges began to weigh the “best interest” of the children when determining custody and visitation matters. The “best interest” standard is still used by most state courts, and is the standard used in Georgia today when making custody determinations.

Although the “best interest” standard does vary from state to state, some overriding themes are noted in the best interest analysis used by the individual states. These factors include:

• Wishes of the child, if of an age deemed reasonable for expressing a preference. Age fourteen (14) in Georgia is almost absolute;
• Mental and physical health of the parents;
• Need for continuation of stable home environment;
• Religion and/or cultural considerations;
• Support and opportunity for interaction with members of extended family of either parent;
• Interaction and interrelationship with other members of household;
• Adjustment to school and community;
• Age and sex of child;
• Parental use of excessive discipline or emotional abuse; and,
•  Evidence of parental drug, alcohol or sex abuse.

In addition to the above factors, some states’ family courts allow preference for the parent who can demonstrate that he or she was a child’s primary caretaker during the course of the marriage. The “primary caretaker” factor became important as psychologists began to stress a vital link between the bond shared between a child and his or her primary caretaker. This emotional bond is said to be important to the child’s successful passage through his or her developmental stages. Psychologists strongly encourage the continuation of this relationship after divorce, because this bond is vital to the child’s emotional and psychological stability.

When determining which parent has been the primary caretaker, courts focus on direct care-taking responsibilities, such as: (1) bathing, grooming and dressing; (2) meal planning and preparation; (3) purchasing clothes and laundry responsibilities; (4) health care arrangements; (5) fostering participation in extracurricular activities; (6) Teaching of reading, writing, and math skills. Depending on the state, other factors may be considered as important when determining primary caretaker status. Even such things as exposure to second-hand smoke and volunteerism in the child’s school have been considered in a primary caretaker analysis. While in the past, the primary caretaker preference seemed just another way to award custody to mothers, as more and more men share parenting responsibilities, this preference does not necessarily favor mothers. When it is apparent that both parents have equally shared parenting responsibilities, courts once again will fall back on the “best interest” standard in determining custody.

Child Custody Issues in Georgia

Most child custody issues that come about as a result of a divorce in Georgia are determined under the authority of the Official Code of Georgia Annotated (O.C.G.A.) Title 19 Section 9.

The general rules which the Court will follow to make an initial award of custody in a contested case are found in O.C.G.A. 19-9-1. This code section allows the Court in all divorce actions where custody is an issue to look into all of the circumstances of the parties to determine the best interest of the children.

If family violence has been alleged by one spouse against the other, the Court will consider the safety and well-being of the child who may have been a victim of said violence.

This code section also allows a child who has reached the age of fourteen (14) to select the parent with whom he or she desires to live. The child’s selection will be allowed by the Court unless the selected parent is determined to be unfit.

If a child involved in a contested custody proceeding has reached the age of eleven (11), but not fourteen (14), the Court will consider his desire in making a custody determination even though his desire is not controlling upon the Court as it would be if the child was at least fourteen (14).

The Court may, in its discretion, appoint a “Guardian Ad Litem” (usually a neutral attorney from the legal community on an approved court list) to investigate the parents and the children and to advise the Court as to the “best interest” of the child or children involved. The Guardian Ad Litem acts as a representative of the children.

The Court is given wide discretion in contested custody matters. It may award full custody to the husband or wife, and visitation to the other spouse, or it may award some type of joint or split custody. It may also grant full physical custody to one spouse but award joint legal custody (which means joint decision making) to both spouses. For example, in the recent case of Walker v. Walker 248 GA App 177 (2001), a Court was found to have acted properly in awarding full physical custody to the father but joint custody to both parents.

O.C.G.A. 19-9-5 specifically allows parents involved in a divorce who reach agreement as to custody to present said agreement to the Court.

The Court will ratify the agreement and make it part of the Final Order and Decree of Divorce unless the Court specifically feels under the circumstances that the agreement is not in the child’s (or children’s) best interest.

Because of the great latitude given to judges in Georgia to decide custody matters with in their discretion, it is very difficult to win an appeal of any custody order. Parties to a divorce are advised to attempt settlement of these issues when possible to avoid the risk involved in any trial of these important issues.

Child custody disputes are never easy. They are not easy for the Courts, for the parents, and they certainly are not easy for the children. Because judges have a large amount of discretion and may be influenced by personal bias or beliefs, it is difficult to predict how a court will rule on custody issues. Therefore, settlement may be the best option for divorcing parents. However, even when considering an out-of-court settlement, parents should have separate legal representation to help ensure that their rights are safeguarded.

Daniel W. Mitnick & Associates, PC child custody cases are primarily handled by Daniel W. Mitnick, Senior Associate.

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