Family Law: Children – Custody / Support / Visitation

Attorneys to help with children issues after separation or divorceWhen it comes to children of unmarried, separated individuals, several legal issues arise. Among the many issues, some of the most common involve custody (with whom the child lives), child support (financial help to care for the child), and visitation (when the other parent can see the child). These issues arise in divorce cases where children are involved, but can also be the result of legitimation between unmarried parents.


How does the court determine who gets custody and visitation of my child?

Like many things in the law, there are a number of factors that go into deciding who gets custody. There is, however, a sort of overriding first principle that you must always keep in mind: the law always looks primarily to the best interests of the child. Essentially this means looking to the child’s needs and which parent is best suited to meet those needs. The relevant factors that the court looks to are found in O.C.G.A. § 19-9-3(a). For a full description of the factors Therefore, if a couple is divorcing, and one spouse is in prison, it will not be in the best interest of the child to have the child reside in prison. This is an extreme example, but you get the idea. If there are major issues with one spouse, these will work against custody for that spouse. This can include issues such as having housing arrangements, employment, health issues, substance abuse problems, and so forth.


That said, in every case involving custody, there will be a parenting plan, which is exactly what it sounds like: a plan for the parents outlining the care of the child. This includes things such as custody, child support, visitation, and any other special needs of the child. If the parties can come to a reasonable decision on any of these issues, the judge will usually approve it after review. If there is no agreement beforehand, then the judge will decide these issues. In these situations the court can appoint a Guardian ad Litem who will represent the child’s best interests. Like most things involving family law, the courts like to see the parties work out and agree on as many issues as possible.


Bear in mind there are different types of custody. Physical custody is having the child physically living with you, while legal custody refers to the ability to make decisions for the child (schooling, religion, diet, etc.). Sole custody means one parent has both physical and legal custody, with the other parent having visitation rights usually based on a set schedule. Joint custody means that either physical, legal, or both physical and legal custody is split between the parents. This is often seen when the child lives with one parent during the school year, the other parent during the summer, and holiday schedules are split and rotated. In cases of joint custody, there will be a determination of primary custody. The child is considered to actually reside with the primary custodial parent, who also will provide for final decision making so there are no stalemates when deciding important issues on raising the child. Grandparent custody may also be an option where neither parent is fit for custody.


It should be noted that since Georgia looks to the best interest of the child, there is no bias toward either parent concerning custody in a divorce. However, in Georgia, outside of a marriage and with no legal legitimation, the mother has presumption of sole custody and the father is not entitled to either decision making or visitations without establishing Paternity and Legitimation.


Can child support be waived?

Essentially, no. Child support is one of the rare things in the law that has a nearly pure objective quality to it. That is, the courts have very little discretion in setting child support; the amount of child support is not just made up. Again, this goes back to looking to the best interests of the child. As such, it cannot just be waived or assigned an arbitrary amount.


The judge will determine the minimum amount of child support by using a child support workbook. This takes several factors into account, and then spits back a number to be awarded as monthly child support. The factors involved include the amount of income each spouse is earning, the number of children, the amount of time each spouse will spend with the children, and the amount each spouse is directly contributing toward expenses such as insurance, among other factors. There is no real way to estimate generally how much child support will be, but we can enter the above criteria into the workbook and get a good idea of the amount.


Also, child support amounts are not permanent once set by the judge. Changes in circumstances can be a basis to modify the amount owed. For instance, if you are paying child support and your ex-spouse gets a better job with more pay, or your hours are cut and you are receiving less pay, the child support you pay could possibly be reduced. However, this is not done automatically. It requires filing a motion with the court and having a hearing on the matter. It is a good idea to keep an eye on the various factors affecting child support and speak with us when you think there may be changes.


Can custody, child support, or visitation be modified?

Generally, yes, with restrictions. In most cases you must show a material change in circumstances that affects the best interests of the child. This could mean a change in one’s income, relocation, child’s request at age 14, and other factors. However, modification of visitation or parenting time can be done once every two years without having to demonstrate a material change in circumstances.