Answers to The Ten Most Common Questions Concerning Child Custody

Written by Rachel Aliza Elovitz

  1. Is there a presumption in favor of a Mother or Father having custody?
    No. Under Georgia law, in all cases in which the custody of a child is at issue between the child’s parents, there is no prima-facie right to custody of the child in the father or mother – no presumption in favor of either parent.
  2. Is there a presumption in favor of a particular kind of custody for either parent?
    No. There is no presumption in favor of a particular kind of custody, legal or physical, in favor of either parent. The Court may consider joint custody as an alternative form of custody and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody, as the Court determines in the child’s best interest.
  3. Is custody decided by a judge or jury?
    A judge hears the issue of custody and makes a determination regarding legal and physical custody of the child. Custody cannot be decided by a jury.
  4. What does the Court (the Judge) consider in determining custody?
    The judge may take into consideration all the circumstances of the case. The Judge must exercise his or her discretion and determine solely what custodial arrangement will foster the best interest of the child and what will best promote the child’s welfare and happiness.
  5. How does the Court determine what is in the best interest of the child?
    The judge may consider any relevant factor in determining what custodial arrangement is in the child’s best interest, including, but not limited to: The love and bond between each parent and the child and between the child and his or her step or half siblings and the residence of such siblings; The capacity and disposition of each parent to meet the child’s daily needs with consideration made for the potential payment of child support by the other parent; The mental and physical health of each parent; Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities; The willingness and ability of each of parent to facilitate a close and continuing relationship between the child and the other parent; The recommendation of a court appointed custody evaluator or guardian ad litem; Any criminal history, family violence, substance abuse, or abuse of a child by either parent.
  6. What if the judge makes a finding of family violence?
    If the judge makes a finding of family violence, then he or she shall: (A) Consider as primary the safety and well-being of the child and of the parent who is the victim of family violence; (B) Consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person; (C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of a custody determination; and (D) The judge may, in addition to other appropriate actions, order supervised visitation or parenting time.
  7. Can A Child Decide With Which Parent He Or She Wants to Reside?
    Most attorneys will answer this question in the affirmative, but it’s not quite that simple. If a child has reached the age of 14 years, then he or she has the right to select the parent with whom he or she desires to live. However, the child’s selection is “presumptive,” not controlling. If the judge determines that it would not be in the child’s best interest to be placed in the custody of that parent, the child will not be placed with that parent – irrespective of the child’s election.
  8. Does the Judge consider the desires of the child in awarding custody?
    Yes, if a child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. However, the judge has complete discretion in making a custody determination. The child’s desires are not controlling. The judge also has discretion concerning the manner in which the child’s desires are considered, including through the report of a guardian ad litem.
  9. What is the legal standard that applies to a custody case?
    The best interest of the child standard is controlling in an original custody action. In a modification of custody action, the party seeking to modify custody must demonstrate that there has been a substantial and material change in circumstances affecting the health or welfare of the child since the last custody order was entered – and that the change of custody is in the best interest of the child.
  10. Can the Judge order a psychological evaluation of the family or a parent?
    Yes. The judge is authorized to order a psychological evaluation or an independent medical evaluation of the family. The Court can also order the parties to submit to an alcohol or drug addiction evaluation or random alcohol or drug screens.

Additional Resources
GA. Code 19-9-3

Rachel A. Elovitz is a domestic litigator who regularly serves as a guardian ad litem, representing the interests of children in custody, abuse, and neglect cases in Georgia’s Superior and Juvenile Courts. She is a regular contributor to the DeKalb Bar News.

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