Custody Types and the Best Interest Factors in Georgia

The starting point

When custody is at issue between parents, there is no prima facie right to custody in the father or mother, and no presumption in favor of any particular form of custody, legal or physical, or in favor of either parent (O.C.G.A. § 19-9-3(a)(1)). At any temporary or permanent hearing, the judge may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.

The judge’s duty is to determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness (§ 19-9-3(a)(2)).

The kinds of custody

Georgia’s custody statute defines these terms (§ 19-9-6):

• Joint legal custody: both parents have equal rights and responsibilities for major decisions about the child, including education, health care, extracurricular activities, and religious training. The judge may still give one parent sole power over certain decisions while both share the rest.
• Joint physical custody: physical custody is shared in a way that assures the child substantially equal time and contact with both parents.
• Joint custody: joint legal custody, joint physical custody, or both. The judge may order joint legal custody without ordering joint physical custody.
• Sole custody: a person has been awarded permanent custody by court order. Unless the order provides otherwise, that person has the rights and responsibilities for major decisions, and the noncustodial parent has the right to visitation or parenting time.

The best interest factors

In determining the child’s best interests, the judge may consider any relevant factor, including, but not limited to, these (§ 19-9-3(a)(3)):

1. The love, affection, bonding, and emotional ties between each parent and the child.
2. The love, affection, bonding, and emotional ties between the child and siblings, half siblings, and stepsiblings, and where those children live.
3. Each parent’s capacity and disposition to give the child love, affection, and guidance and to continue the child’s education and rearing.
4. Each parent’s knowledge and familiarity of the child and the child’s needs.
5. Each parent’s capacity and disposition to provide food, clothing, medical care, day-to-day needs, and other basic care, considering the potential payment of child support by the other parent.
6. Each parent’s home environment, considering the promotion of nurturance and safety rather than superficial or material factors.
7. The importance of continuity in the child’s life and how long the child has lived in a stable, satisfactory environment.
8. The stability of each parent’s family unit and the presence or absence of support systems in the community.
9. The mental and physical health of each parent, subject to the limits the statute cross-references in §§ 30-4-5 and 15-11-26.
10. Each parent’s involvement, or lack of it, in the child’s educational, social, and extracurricular activities.
11. Each parent’s employment schedule and its flexibility or limitations for caring for the child.
12. The child’s home, school, and community record and history, and any health or educational special needs.
13. Each parent’s past performance and relative abilities for future performance of parenting responsibilities.
14. Each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent, consistent with the child’s best interest.
15. Any recommendation by a court appointed custody evaluator or guardian ad litem.
16. Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent.
17. Any evidence of substance abuse by either parent.

When there is family violence

If the judge has made a finding of family violence, the judge must also, in addition to the other factors (§ 19-9-3(a)(4)):

• Consider as primary the safety and well-being of the child and of the parent who is the victim of family violence.
• Consider the perpetrator’s history of causing physical harm, bodily injury, assault, or reasonable fear of these to another person.

If a parent is absent or relocates because of an act of domestic violence by the other parent, that absence or relocation for a reasonable period is not deemed abandonment for custody purposes. The judge may not refuse to consider relevant or otherwise admissible evidence of family violence merely because there has been no previous finding of family violence, and may order supervised visitation or parenting time under § 19-9-7.

Under § 19-9-7(a), a judge may award visitation or parenting time to a parent who committed family violence only if adequate provision for the safety of the child and the victim parent can be made. The order may, among other things, require exchanges in a protected setting, supervised visitation, completion of a certified family violence intervention program, abstaining from alcohol, marijuana, or Schedule I controlled substances during and for 24 hours before visits, or a bond, and may prohibit overnight visits. The judge may not order an adult victim to attend joint counseling with the perpetrator as a condition of custody or visitation (§ 19-9-7(c)).

What the child wants

The statute treats a child’s preference by age:

• Age 14 or older. The child has the right to select the parent with whom he or she desires to live, and the selection is presumptive unless the parent selected is determined not to be in the child’s best interests (§ 19-9-3(a)(5)). The selection may, in and of itself, be a material change of condition in a modification action, but it may be made only once within two years from the previous selection, and the best interests standard still applies.
• Age 11 to 13. The judge shall consider the child’s desires and educational needs, but the desires are not controlling, the judge has complete discretion in the custody determination and broad discretion over how the desires are considered, including through a guardian ad litem’s report, and the best interests of the child standard is controlling (§ 19-9-3(a)(6)). At this age, the child’s selection does not by itself constitute a material change of condition. The judge may grant temporary custody to the selected parent for a trial period of no more than six months where the judge determines that is appropriate.

Except by leave of court, children of the parties may not give oral testimony at temporary hearings, and when custody is in dispute the court may direct that they be available to consult with the judge (Uniform Superior Court Rule 24.5(B)).

Evaluations, reports, and written findings

• The judge is authorized to order a psychological custody evaluation of the family or an independent medical evaluation (§ 19-9-3(a)(7)).
• On a motion containing a specific recitation of actual abuse, neglect, or other overt acts that have adversely affected the child, the judge may direct an agency to investigate each parent’s home life in a contested custody case; both parties get access to the report before the hearing and may cross-examine the person who made it if adequate notice is given (§ 19-9-4).
• If requested by any party on or before the close of evidence in a contested hearing, the permanent custody order must set out specific findings of fact explaining the decision, including the factors relied on, 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 is to be filed within 30 days of the final hearing unless extended by the judge with the parties’ agreement (§ 19-9-3(a)(8)).

Georgia's stated policy

It is the express policy of Georgia to encourage a child’s continuing contact with parents and grandparents who have shown the ability to act in the child’s best interest, and to encourage parents to share the rights and responsibilities of raising their child after they separate (§ 19-9-3(d)).

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 determination and factors
• O.C.G.A. § 19-9-4, investigation of abuse or neglect
• O.C.G.A. § 19-9-6, custody definitions
• O.C.G.A. § 19-9-7, visitation where there is family violence
• Uniform Superior Court Rule 24.5, witnesses