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What Does the “Best Interests of the Child” Mean in Georgia?

What Does the “Best Interests of the Child” Mean in Georgia?

If you are considering filing for child custody in Georgia, you may want to first learn about the child custody laws in Georgia. Courts in Georgia make a decision concerning the custody of a child or children based on what is the child’s best interest. Georgia law provides a list of factors for the court to consider in making its decision, but the list is neither inclusive nor exclusive. In other words not every factor or consideration applies to every case. Rather, the court evaluates each child custody case individually and takes time to know the family situation and examines the types of child custody options available before deciding to rule for custody. Accordingly, child custody laws in Georgia can be confusing and it is important to know about child custody laws in advance. Below explains a few things the parties (parents of the child or children) to know about how Georgia courts determine child custody issues.

Child custody laws in Georgia

In Georgia, when parents cannot agree on custody during a divorce, family courts determine child custody. [O.C.G.A. § §§ 19-9-3(a)]. A judge, not a jury, is responsible for considering and deciding which parent will have legal custody and physical custody, and visitation. Legal custody is the right to make decisions about the child’s welfare, whereas, physical custody is the right to live with the child. The judge must base his or her decision on what is known as the “best interests of the child” standard. This means that the judge will look first to what is the best for the child (or the children involved) and what will best promote their welfare and happiness. [O.C.G.A. § §§ 19-9-3(a)(2)]. There is no presumption in favor of either a mother or a father under Georgia law. [O.C.G.A. § 19-9-3 (a) (1)]. Regarding child custody determination, Georgia law clearly indicates that both mothers and fathers have equal status.

Best interests of the child

When deciding what is in the best interest of the child in Georgia, a judge considers any relevant factor. Georgia law lists seventeen examples of factors that may be considered. [O.C.G.A. § §§ 19-9-3(a)(3)]. This list is not all inclusive and any factor relevant to the best interest of the child may be considered by the judge. Included in the list are the following:

  • The emotional ties existing between each parent and the child
  • The emotional ties existing between the child and his or her siblings
  • The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child
  • Each parent’s knowledge and familiarity of the child and the child’s needs
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care
  • The home environment of each parent considering the promotion of nurturance and safety of the child
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
  • The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child
  • The mental and physical health of each parent
  • Each parent’s involvement, or lack thereof, in the child’s education, social and extracurricular activities
  • Each parent’s past performance and relative abilities for future performance of parenting responsibilities
  • The home, school and community record and history of the child as well as any health or educational special needs of the child
  • The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child
  • Any recommendation by a court appointed custody evaluator or guardian ad litem
  • Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent
  • Any evidence of substance abuse by either parent

Affidavits of Custody signed by Children

Most commonly, the court hearing a child custody case may take several factors regarding the child or children (such as age, gender, and health) in question into account when making a custody determination. Particularly, the age of the child has a big effect on custody especially if he or she is over fourteen (14) years old because the child who has reached the age of fourteen (14) years has the right to select the parent with whom he or she desires to live by signing a document commonly called an “Affidavit of Custody.” [O.C.G.A. § §§ 19-9-3(a)(5)]. The child or children’s existing routine may also play a large factor in the court’s decision where it is important or desirable to maintain the continuity. For instance, the court may look at the child or children’s daily activities, where they go to school, and how long they have resided at the same house, and decide that is best for them to maintain their routine.

Other Key Factors Georgia Divorce and Family Law Courts Consider

What Does the “Best Interests of the Child” Mean in Georgia? - Divorce Child Custody, Divorce & Family Law Attorneys

A court may consider other key factors regarding the existing parent and child relationship or the ability of the parents to take care of their children. The ability of the parents to take care of their children can be determined by the health and lifestyle of each parent, any history of abuse or violence, or any other factors that may affect or interfere with critical activities such as feeding, clothing, and providing medical care. In determining the stability of the family unit, the court will look for any evidence that points toward a stable environment for the child. Similar to the continuity factor mentioned above, the court considers continuity of living in the same house, going to the same school, participating in the same extracurricular activities, and socializing with the same friends. In addition, the court also take into account parental stability which includes whether one parent has continually lived and maintained the same house for his or her children while the other parent lived in various other places during that time. The court will likely favor the stable parent who stayed in the house the most.

Guardian Ad Litems in Georgia Divorce and Family Law Cases

In some cases, Georgia courts may appoint a “guardian ad litem” to represent the child’s interest and express those interests to the court [O.C.G.A. § 15-11-105 (a) (1)], or a “custody evaluator” to meet with the family and make a custody recommendation to the court. The court appoints a guardian or a custody evaluator to investigate and recommend the best outcome for the child because in many cases the parents of the child are solely focused on their problems or needs and not able to see the situation from the perspective of the child. A guardian or a custody evaluator can be more objective than the parents. The guardian ad litem or the custody evaluator investigates the entire background, living conditions, and family relationships of the child in order to make a recommendation to the court. The court is not required to follow the recommendation of the guardian ad litem or the custody evaluator but will generally take into consideration the guardian’s report in making the final decision regarding custody or other arrangement that would be the best interest of the child.

Legal Help Options in Your Georgia Child Custody Case

If you are seeking child custody in Georgia, you need to understand the applicable divorce and family laws in Georgia. A lawyer with experience in Georgia child custody cases will be able help you answer any questions or concerns specifically for you and your family’s situation. Call us at 770-609-1247 to speak with one of our experienced Georgia child custody, divorce and family law attorneys.  Contact Information >

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