A Primer on Georgia Custody Law
In the state of Georgia, as in many other parts of the country, parents have to consider the concept of custody, regardless of whether they are married to the other parent of their child. When a child’s parents are living together (they are married or cohabitating), they essentially share legal custody; in most cases, this will also extend to physical custody. However, if a child’s parents were not married when the child was born, there can be baby surprises ahead.
With that in mind, unmarried parents of a child born in Georgia are generally treated differently than parents who are married to one another at the time of the child’s birth. Because neither parent is the presumed legal parent at the time of the child’s birth, the only way an unmarried father will be able to establish legal rights and the ability to seek custody of a child is through legitimation . Paternity must be established before legal rights are created.
The exception would be the case in which the parents create a Voluntary Paternity Acknowledgment, a form provided by the Georgia Department of Human Services. This is essentially a contract the parents sign at the time of the child’s birth to acknowledge that the man named on the acknowledgment is the biological father of the child. Once the acknowledgment is in place, a Voluntary Paternity Order is signed by a judge, who will then provide the father with a birth certificate that includes his name as the child’s father and with the legal right to seek custody should the parents separate.
Legal Versus Physical Custody
There are two forms of custody: legal and physical. Legal custody refers to the parental right to make decisions about the child’s future welfare in areas such as education, health care and religious instruction. It is possible for parents to share legal custody. Physical custody involves the actual physical control over and supervision of the child. A parent with physical custody has the right to choose where the child lives, arrange for appropriate supervision and make day-to-day decisions concerning the child’s needs.
In the case of unmarried parents, legal custody remains with the mother until a court order grants legal custody to the father. Once a court order grants legal custody to a father, an unmarried mother cannot remove the child from the state without the written consent of the father or a court order granting her permission to leave the state with the child. Thus, the duties and responsibilities involved in legal custody can impact where parents live and practice their professions. The above parentage statute also provides that temporary (prior to a final court order) orders regarding temporary custody, visitation and child support can be granted to the dependant parent if there are grounds to believe that neither party may persist in providing adequate care for the child.
Paternity Establishment in Georgia
In the state of Georgia, if a child is born to unmarried parents, the legal relationship between the child and the father must be established through the process of paternity establishment. In cases where a mother is married, Georgia law makes the husband of the mother the legal father of the child. However, with unmarried parents, there is no presumption of paternity.
One of the primary ways that paternity can be established is through the parties signing a recognition of paternity. This document should be signed voluntarily by both parents, and it provides a legal declaration of paternity for the child. If paternity is not otherwise established, then the child has no legal rights against the father for inheritance or support purposes.
Establishing paternity also creates a legal right for the child to have a relationship with both parents. For couples who are going their separate ways or have never been in a romantic relationship, this may seem unnecessary. However, Georgia law is very clear that a child has a right to establish relationships with both parents.
If paternity has not been established, the mother has sole rights to custody and may make all decisions about the health, welfare, education, upbringing, and support for the child. Even if the father wants to play a large role in the child’s life, he will have no legal basis for doing so unless he goes through the court system to establish paternity.
Signing a recognition of paternity does not only affect the right for the father to have custody of the child. It creates a strong legal relationship that the father will have to abide by in all matters regarding the child. He will be responsible for child support, medical support, and the rights of grandparents. Without a legal recognition of paternity, the father has no rights in any of these situations.
The importance of establishing paternity cannot be overstated, particularly in the early stages of the child’s life. Even if there is no ongoing relationship between the father and mother, by establishing paternity the child will know who his or her father is and may develop a relationship with him later in life. A child’s knowledge of his or her father can create a great deal of peace for many years to come.
Best Interest of the Child
When determining how to issue a custody award, Georgia courts are bound by the "best interest of the child" standard. The courts will ". . . consider and decide what is in the best interests of the child at issue . . .". Because ". . . the best interests of the child are to be the sole concern of the court in awarding custody . . ." the Court may award limited visitation to the other parent, so as to best protect the child.
When making the determination that a child shall be in the custody of his father for purposes of Georgia law, there is no presumption that, all other things being equal, the child should be with his mother instead of his father. O.C.G.A 19-9-3(a)(3). The preference for mothers over fathers in addition to deeming the mother as a better nurturer is no longer a presumption of Georgia Law.
While Georgia continues to look to the best interests of the child, it has sought to provide guidelines as to how the courts determine what is in the best interest. O.C.G.A. 19-9-3(a)(3) provides that the Court may consider a number of factors when determining the best interest of the child in any proceeding involving a question of child custody. These include:. . . (A) The love, affection, bonding, and emotional ties existing between each parent and the child; (B) The capacity and disposition of the parents to provide the child with food, clothing, medical care, and other material needs; (C) The importance of continuity in the life of the child and the length of time the child has been in a stable, satisfactory environment; and (D) The home environment of each parent as a source of love, comfort, guidance, spiritual and moral training, and education. . . .
While Georgia law has postulated these specific factors into the "Best Interests of the child" analysis, the case law of the Georgia appellate courts has provided additional factors as well. While not a complete list of factors, Junne v. Johnson, 188 Ga. App. 819 (1985) provides the following considerations to be taken by the trial court: (1) the psychological parent concept – representativeness of role as a psychological parent, (2) the bond existing between the parent and child, (3) the child’s preferences with regard to who he/she wants to live with, (4) the parents’ past performance and future ability to provide for the child’s material, emotional, and medical needs, (5) the home environment, (6) the home surroundings, (7) the stability of the home environment, (8) the impact of siblings, (9) the potential for evolution of the parents and the home environment as the child matures, (10) the parents’ intelligence, maturity level, character, and their capacity and disposition when compared with a parent of contemporary skills and dispositions to rear a child, (11) the promotion of the psychological growth of the child, (12) the impact of any physical violence to the child or to one parent from the other, and (13) the ability and willingness of each parent to cooperate with the other parent in matters regarding child rearing.
The above list is non-exhaustive, and the standards of what is in a child’s best interest have been expanded as the courts encounter additional issues.
Visitation Rights of Unmarried Parents
When it comes to custody matters, Georgia law tends to exclude living arrangements for the parents in settling custody disputes. However, visitation and custodial rights are always taken into account in cases of unmarried parents. Similar custody concerns apply in these cases.
The courts pursue the best interests of the child in all visitation matters. Specific elements under the law are taken into account when determining who should have custody and visitation rights. The facts of the case are largely in the purview of the judge, although other external factors will also be taken from the terms of any custody agreement that exists.
Most custody arrangements will include visitation rights, although the terms may differ. Much like in a marriage, one parent may have full custody while the other parent has partial custody. This falls under two categories:
Upon establishing visitation rights, the standard alternation of time is that the child will spend holidays or breaks with one parent , while the other parent maintains visitation rights over the remaining days of the week. A common win-win arrangement is either every weekend and alternate weekdays, or weekdays with alternate weekends. Non-custodial parents can expect to have at least some visitation rights, if the court sees reason to pursue this option.
There are a few challenges that unmarried parents face when it comes to exercising visitation rights. The biggest consideration is the fact that one parent may not know the whereabouts of the child, because that information must be disclosed to both parents. These situations apply mainly to parents who did not undergo the legal requirements for establishing parentage.
In most cases, the parents must have been living together for at least six months. For fathers, either acknowledgment or adjudication of parentage is necessary, although not required for single mothers. Not knowing the parentage of a child may prevent a parent from having visitation rights.
Modifying a Custody Agreement
When either or both parents desire to change an existing custody or parenting time agreement that is in the best interest of the child, a new setting for the court is often required. The modifying parent has the burden of proof to show the change is in the child’s best interest.
In a case where a court order is not in existence, then the petition seeking modification, or a request for hearing may be filed at any time. If a court order regarding award of temporary or final custody is in place, a parent is prohibited from filing a modification request for a period of two years after the final order is entered, unless the judge gives permission to do so. In the case of a temporary custody order a parent would be limited to the filing of a modification request as the case is still open.
If the initial custody order was issued in another state, the modification may well be controlled by the Uniform Child Custody Jurisdiction and Enforcement Act, also known as UCCJEA (OCGA ยง 19-9-61 et seq.). Under UCCJEA, a court may exercise jurisdiction to make or modify a child custody order regardless of its hands-on contact with the child or the parties. The foreign child support order must not have been vacated, stayed, or modified by a court of proper jurisdiction for the UCCJEA court to proceed.
In every case dealing with modification, the test of best interest and welfare of the child must be the principle universal guide, and must prevail over all other considerations. If the parties are able to agree to a new custody or parenting time agreement this could be done and would most likely not require a hearing before a judge. This is the simplest way to proceed and ultimately best for the children involved.
In the event that this is not a possible option, the potential new custody arrangement should be set out clearly in the form of a consent order, having been agreed upon by both parents and signed by the parties and the judge. If the agreement cannot be reached voluntarily by the parents, the issue can be decided by the judge upon the filing of a petition to modify, which will address the legal basis to modify a custody order as imposed by temporary or final decision initially.
Legal Support and Resources
When it comes to legal aid and resources, the state of Georgia has numerous programs designed to assist individuals, including unmarried parents confronting legal challenges related to custody. Legal aid resources throughout Georgia provide free or low-cost legal services to indigents.
In the Atlanta area, the Fulton County courthouse offers several services that are focused on helping self-represented litigants navigate the justice system. The Self-Help Information Center at the Fulton County Courthouse is available to assist people with legal advice, educational information, and procedural forms. Staff members are able to provide pro se litigants with information about the court process.
The Cobb County Court Self-Help Center also offers numerous legal resources for self-represented litigants and can be accessed online. Other counties, such as DeKalb and Gwinnett , also offer similar court services to support pro se litigants.
Legal aid organizations, sometimes referred to as pro bono legal services, are an additional resource offering help to low-income Georgians. Georgia Legal Services Program is a non-profit organization that represents legal aid clients with civil matters in Georgia. State Bar of Georgia offers a Lawyer Referral Service, which helps people find lawyers who can offer a consultation for a small fee. To qualify for either of these services, applicants must meet non-financial and financial eligibility requirements. You can call Atlanta Legal Aid at (404) 524-5810.
As an unmarried parent, you have access to many local legal resources to assist you in understanding Georgia custody laws and issues. Key law terms such as custody and physical custody should also be explained in layman’s terms.