Georgia Child Custody

Legal, Physical, and Sole Custody vs. Visitation

When couples with children break up, one of the biggest issues that must be determined is who receives custody of the children. In Georgia, the standard for determining custody by a court is the “best interests of the child.”

What is the “Best Interests of the Child” Standard?

O.C.G.A. § 19-9-3 provides the standard Georgia judges use when determining which party should have custody of a child. The standard is subjective, but the statute provides a list of seventeen factors which may be used by a judge to determine custody. These factors include, but are not limited to, the love, affection, bonding and emotional ties existing between each parent and the child, the child and his or her siblings, half siblings and step siblings and the residence of such other children; 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; each parent’s knowledge and familiarity of the child and the child’s needs; the home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors; each parent’s involvement, or lack thereof, in the child’s educational, social and extracurricular activities; and each parent’s past performance and relative abilities for future performance of parenting responsibilities.

What is Legal Custody?

A person with legal custody has the right to make decisions for the child. These decisions include decisions regarding the child’s education, religious training, discipline, non-emergency medical care, and any other matters of significance concerning the child’s welfare.

What is Physical Custody? 

A person with physical custody has care and physical control over thechild. The child lives with theperson who has physical custody.

What is Joint Custody?

Joint custody is when both parents share legal custody and physical custody of the child.  The court, in itsdiscretion, may award joint custody.  Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child, with one parent having final decision-making authority for each of the major decision areas: medical, educational, extracurricular and religion.  Joint physical custody is shared by the parents in such a way to assure the child has substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or joint legal and physical custody.

  When is Joint Custody Typically Granted?

In order to ensure the child’s best interests are met, the court seriously considers whether it will grant joint custody. The most important factor is the ability of the parents to talk about and reach joint decisions that affect the child’s welfare.  If the couple is constantly bickering over how to parent the child, what religion, or what school, the court will not likely grant joint custody.  The court also considers, but is not limited to, the parties’ willingness to share custody; fitness; child’s relationships with parents; child’s preference; ability to stabilize child’s school and social life; closeness to parent’s homes (primarily a factor during the school year) ; employment considerations (e.g. long hours, extensive travel, etc.); age and number of children; financial status; benefit to parent.

  What is Sole Custody?

A person with sole custody has both sole physical custody of the child and sole legal custody of the child.This means that the person awarded sole custody by the court has complete and sole responsibility for the child andthe ability to make all decisions for the child.

  When is Sole Custody Typically Granted?

Sole custody is only granted in instances when one parent is unfit, and a showing that time with that parent would be detrimental to the child.

  What is the Difference between Custody and Visitation?

Visitation is the part of the court order that defines the conditions for the non-custodial parent to have contact with the child. Visitation is limited by legal custody being vested in the other parent. This means that your visitation does not give you the authority to conflict with the long-range decisions and policies of the parent with legal custody. For example, if the parent with legal custody has decided to raise the child in the Jewish tradition, the parent with visitation rights may not take the child to be baptized in a Catholic church.

  Who can be awarded visitation?

A legal parent can be awarded visitation.  Additionally, grandparents (even when the parents weren’t married or are not currently divorced) and step-parents may be awarded visitation rights in Georgia.

  When can visitation be denied?

The court has the power to deny visitation. Normally the court will only stop visitation for a certain time or until a certain task is performed. For example, the court has previously stayed visitation until the parent met their child support obligations.