Marvin Solomiany on Custody and Jurisdiction



Modification of Custody/Visitation FAQs     

What is Joint Custody?
Joint custody means that both parents have the right to make decisions affecting the children and the right to have the children live with them. Obviously this is vague. Thus with respect to decision making, the court (or the parties if they can reach an agreement) will either award sole legal custody to one side so that if the parties do not concur about a child related decision, one parent can make the decision, or, the court may award joint legal custody, but designate one party to make the final decision on some or all of the decisions (education, medical, religious, extra curricular and so on). With respect to physical custody, there must be more specificity than just "joint" or "sole" custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

What is Legal Custody?
Please review the answer to the FAQ about Joint Custody. Legal custody is the term used for the parent who is authorized to make the decisions regarding the child's welfare (education, medical, religious, extra curricular and so on). Usually there is a requirement that the parties try to cooperate to reach mutual decisions, but if this is unsuccessful, the legal custodian makes the decisions. It is often helpful to designate both parents as joint legal custodians so that physicians, school administrators and the like will have no reason to withhold copies of the children's records from either party.

What is Physical Custody?
Please review the answer to the FAQ about Joint Custody. Physical custody is the term used for the parent with whom the child(ren) are to live with the majority of the time. Regardless of whether a parent is awarded sole or joint physical custody, a schedule of dates and times for the child(ren) to be with each parent should be prepared and made a party of any custody order. As mentioned in the earlier FAQ, there must be more specificity than just "joint" or "sole" custody, so regardless of the label, the court (or the parties if they can reach an agreement) will specify dates and times for the child(ren) to be with each parent. These times will be termed periods of custody, parenting time or visitation depending on the court. The parent with the majority of time is the custodial parent, but may be referred to as the primary custodial parent.

How does the Court decide custody?
In an initial custody proceeding (such as a divorce, or legitimation case), the court must look at what is in the best interest of the chidren. Once the Court has awarded custody, it can only be changed if there is a change of conditions (which has a legal definition spelled out in various cases).

Can the court use a Guardian Ad Litem (GAL) in custody cases in Georgia?
Yes. See our FAQs on Guardian Ad Litem (GAL) .

Can the court use a psychologist to help in it's decision?
Yes. The court may appoint a psychologist to do various types of evaluations such as a custody evaluation or fitness evaluation.

Can grandparents be awarded custody or visitation rights?
Yes, but the legal burden is much higher for grandparents which means it is harder for grandparents to achieve custody or visitation rights than parents. If either or both parents are fit, grandparents will likely not be awarded custody and may have a hard time achieving visitation rights.

Where can I read the new custody statute?
Click here for (HB369 - Custody Bill).

My fourteen (14) year old daughter told me that she now wants to live with me instead of her mother. Can she?
A child fourteen (14) years or older may elect the parent with whom he or she wants to reside, and the court will likely defer to his or her election, so long as the Court agrees that this is in the best interests of the child. For cases filed before January 1, 2008, the Court had to honor the election unless the chosen parent was unfit.

How often can a 14 year old change their mind?
After January 1, 2008, such an election can only be made once every two years.

Can I seek a modification of custody requesting that all three of my children live with me based on my fourteen (14) year old (oldest) child's election?
With respect to the younger siblings, if they also desire to live with you, your older child's election in addition to the younger children's desires may provide the basis for a change of custody of all three (3) children. Each case is fact specific, and it will depend on the details of your situation.

My twelve (12) year old son has told me that he wants to live with me instead of his father. Is his desire sufficient to change custody to me?
His desire alone is probably not sufficient to change custody. While Georgia courts are authorized to consider the desires of a child between the ages of 11 and 13, in order to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. The desire of a 12 year old child standing alone would probably not meet this test.

ecently, my eight (8) year old son, who lives with his mother, has been doing poorly in school and his teachers have reported to me that he often comes to school in dirty clothes and wet hair. Can I seek a change of custody for these reasons?
Generally, in a case between parents, to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. If your son's performance and appearance in school has changed since custody was awarded to his mother, you may have a basis to file for a change of custody. Each case is fact specific, and it will depend on the details of your situation.

What factors does the court consider when determining whether to change a prior custody order?
Generally, in a case between parents, to authorize a change of custody, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody award. A slight change in condition will not authorize a change of custody, and each case is fact specific.

What factors does the court consider when determining whether to change a prior visitation order?
Generally, in a case between parents, to authorize a change of visitation, the party who brings the action must show that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody and visitation award. However, the court has the authority to review and modify visitation rights once every two years from the date of the original order without the necessity of proving any change in condition, whether slight or substantial, of either party or the children.

How often can I file to change custody? Visitation?
An action to change custody and/or visitation can be brought at any time following the most recent custody order, provided you can prove that (a) there has been a material change of condition (b) substantially affecting the interest and welfare of the child, and (c) the evidence offered to prove such condition must be fresh, having occurred since the most recent custody and visitation award. With respect to visitation only, the court has the authority to review and modify visitation rights once every two years from the date of the original order without the necessity of proving any change in condition, whether slight or substantial, of either party or the children.

My ex-husband recently, within the last 6 months, moved from Georgia to California with our 3 year old daughter. Where should I file an action to change custody to me?
Generally, if a court in the State of Georgia issued the most recent order regarding the custody and visitation of your child, Georgia is the proper place to file. However, the Georgia court may decide that Georgia should not handle the case if there is no longer a significant connection with Georgia and substantial evidence is no longer available in Georgia.

If I file an action to modify custody, can my ex-spouse be ordered to pay my attorney's fees?
For cases filed before January 1, 2008, generally, no. Unless your ex-spouse has made a frivolous claim, been stubbornly litigious, or has otherwise acted in bad faith during the litigation, in which case the court has the power to award attorney's fees and expenses of litigation, the court had no authority to award attorney's fees in an action solely to modify custody and/or visitation. However, if your case includes a claim for modification of child support incident to the change of custody, the court may award attorney's fees, costs and expenses of litigation to the "prevailing" party with respect to the child support claim, regardless of who files the case, and can also require the party seeking a modification of child support to pay your ex-spouse's attorney's fees and expenses for having to defend the case. Ultimately, it's entirely within the court's providence to award fees or not in such a case. For cases filed on or after January 1, 2008, attorney's fees may be awarded by the court from one party to the other.

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