What to Expect at a Georgia Custody Hearing

Temporary hearings and final hearings

Many custody cases have a temporary hearing early on, which sets custody, parenting time, and support while the case is pending, and a final hearing or trial at the end. In a divorce, the judge may decide who has care and custody of the children until the final judgment (O.C.G.A. § 19-6-14), and in a change of custody action the judge may change custody on a temporary basis pending final judgment, without that being an adjudication of the parties’ rights (§ 19-9-3(e)).

Deadlines before a hearing

• Notice of a temporary hearing must be served on the other party at least 15 days before the hearing, unless the court orders otherwise (Uniform Superior Court Rule 24.2). Rule 24.4 applies the same notice rule to temporary hearings in domestic relations cases that do not involve financial matters.
• The financial affidavit. In actions for child support, alimony, property division, modification of support or alimony, or attorney’s fees, each party serves the Domestic Relations Financial Affidavit at least 5 days before any temporary or final hearing, with the child support worksheets and schedules where child support is involved. In emergency actions they may be served on or before the hearing date or as the court orders. Amendments must be served at least 5 days before the final hearing or trial (Rule 24.2).
• Affidavits for extra witnesses at a temporary hearing must be served on opposing counsel at least 24 hours before the hearing (Rule 24.5(A)).
• A proposed parenting plan. If the parties cannot agree on a permanent parenting plan, each files and serves a proposed plan on or before the date set by the court. Failure to file one may result in the court adopting the other party’s plan if the judge finds it to be in the child’s best interests (O.C.G.A. § 19-9-1(c)).

Each party submits the original affidavit and worksheets and schedules to the court at the hearing or trial (Rule 24.2).

Who testifies

• At temporary hearings, the parties and one additional witness for each side may testify in person. Other witnesses testify by deposition or affidavit unless the court orders otherwise (Rule 24.5(A)).
• Except by leave of court, the parties’ minor children do not testify at temporary hearings and are excluded from the courtroom. When custody is disputed and the court directs it, children must be available for consultation with the court, attorneys may attend but may not question them without the court’s express permission, and on request the proceedings in chambers are recorded (Rule 24.5(B)).
• A guardian ad litem, if appointed, is expected to be called as the court’s witness at trial unless the court directs otherwise, is subject to examination by the parties and the court, and is qualified as an expert witness on the child’s best interest (Uniform Superior Court Rule 24.9, part 7).
• The judge may order a psychological custody evaluation of the family or an independent medical evaluation (O.C.G.A. § 19-9-3(a)(7)).

Who decides, and how

The judge hearing the custody issue makes the custody determination, and the matter is not decided by a jury. The judge’s duty is to determine solely what is for the best interest of the child (O.C.G.A. § 19-9-3(a)(2)). The judge may consider any relevant factor, including those listed in § 19-9-3(a)(3). Child support works differently: the guidelines provide for a jury to determine gross income and deviations in some cases (§ 19-6-15(c)(5)).

Ask for findings of fact on time

If any party requests it on or before the close of evidence in a contested hearing, the permanent custody order must set out specific findings of fact on the basis for the decision, including the relevant factors the judge relied on. The order must explain in detail why custody was awarded as it was and, if joint legal custody is awarded, how final decisions on education, health, extracurricular activities, religion, and other important matters will be made. The order must be filed within 30 days of the final hearing unless extended by order of the judge with the agreement of the parties (O.C.G.A. § 19-9-3(a)(8)).

Motions and attorney’s fees

• Unless the judge orders otherwise or the law provides otherwise, a party opposing a motion serves and files a response no later than 30 days after service of the motion (Uniform Superior Court Rule 6.2). Unless the court orders otherwise, motions in civil actions are decided without an oral hearing, with limited exceptions (Rule 6.3).
• The judge may order reasonable attorney’s fees and expenses of litigation, experts, and the guardian ad litem in a custody action to be paid by the parties in proportions the judge determines, at both temporary and final hearings (O.C.G.A. § 19-9-3(g)).

After the decision: appeals

Georgia has two appeal routes, and deadlines are short:

1. Direct appeal. Judgments or orders in child custody cases awarding, refusing to change, or modifying child custody, or holding or declining to hold persons in contempt of a custody order, are listed among the judgments that may be appealed directly (O.C.G.A. § 5-6-34(a)(11)). A notice of appeal is filed within 30 days after entry of the judgment, or, if a motion for new trial or certain other motions were filed, within 30 days after the order disposing of that motion (§ 5-6-38(a)).
2. Application for discretionary appeal. Appeals from judgments or orders in divorce, alimony, and other domestic relations cases are taken by application (§ 5-6-35(a)(2)). The application is filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of entry of the order (§ 5-6-35(d)).

Where an appeal is taken from a judgment granting nonmonetary relief in a child custody case, the judgment stands until reversed or modified by the reviewing court unless the trial court states otherwise (§§ 5-6-34(e) and 5-6-35(k)).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• O.C.G.A. § 19-9-3, custody determinations
• O.C.G.A. § 19-9-1(c), proposed parenting plans
• O.C.G.A. § 19-6-14, temporary custody in a divorce
• O.C.G.A. § 19-6-15(c)(5), juries in child support
• O.C.G.A. § 5-6-34, direct appeals
• O.C.G.A. § 5-6-35, discretionary applications
• O.C.G.A. § 5-6-38, notice of appeal
• Uniform Superior Court Rules 6.2, 6.3, 24.2, 24.4, 24.5 and 24.9