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How Does A Judge Determine Custody?

A judge will consider a number of factors under the child custody statute in Georgia, including which parent has been the primary caretaker of the children, each parent’s work schedule, including necessary work travel, each parent’s home environment and their ability to care for and nurture the child.  Additionally, the judge can consider each parent’s physical and mental health, their emotional ties to the child and their ability to provide the child with the basic needs, such as clothing, food and medical care.

A judge will also examine the relationship between the child and any siblings, half-siblings or step-siblings living in the parent’s home, each parent’s familiarity with the child’s health, educational and social needs, each parent’s involvement in the child’s schooling and extracurricular activities and each parent’s willingness to foster a relationship between the child and the non-custodial parent.

Also under consideration will be the relative stability of each parent, including any history of substance abuse by either parent, any history of physical abuse, sexual abuse or neglect toward the children by either parent, and any criminal history of either parent.

In Georgia, custody issues are decided by a judge, not a jury, so it is very important for each parent’s attorney to be familiar about the judge to whom the case is assigned.

Georgia is one of only two states in the country that allows jury trials in divorces even if only one side demands a jury, but custody issues are never decided by a jury. The judge decides custody and attorney’s fees, and allows all other issues to go to the jury, such as division of assets and debt, child support and alimony.

What if One Spouse Was Having An Affair?

How infidelity affects custody depends on the individual judge assigned to the case. Sometimes, a judge who has “traditional” leanings may be offended by adultery, and they may decide take it out on the person who had the affair, but that’s becoming less common with time. Many judges consider adultery a non-issue in custody decisions, unless the child was exposed to the affair.

As many judges see it, the issue of a parent’s affair has less to do with moral shortcoming than neglect. Did the adulterous parent leave their child for long periods of time to instead be with their paramour?  If so, such circumstances may not bode well for the unfaithful parent in his or her custody bid.

Can a Father Get Custody?

If a father wants custody, his gender is still probably the biggest barrier to custody in many courts in Georgia.  Even though the U.S. Supreme Court has ruled that gender bias in custody actions is unconstitutional, trial court judges have very wide discretion in custody decisions and gender bias is difficult to prove.  It is very unfortunate, but we still live in a society that gives more lip service than full credit to fatherhood and nowhere is this more prevalent than in many courtrooms.  As one attorney eloquently put it “The ghost of every judge’s mother haunts the courtroom” and while there are many judges that can and will turn a blind eye to gender, that is more the exception than the rule, at least in the South. This unspoken preference for mothers in custody actions will continue to be the case until our society learns to value fathers more.

The good news is that custody prospects for men have gotten much better over the years, however. More fathers are receiving primary physical custody than previously. Even for those who don’t, the old restrictive standard schedule of every other weekend (which amounted to a paltry average of four days a month) has been overhauled. It is also no longer a slam-dunk for virtually every mother in a custody action.

An experienced family law attorney can assist fathers seeking custody of the best ways in which to maximize their chances of receiving primary or joint physical custody.

How Long Can The Process Take?

Many factors contribute to how long a contested action can take. The length of time depends largely on the county in which the case is pending and the judge to whom it is assigned.  Of course, it also depends on how far apart the parties are in their respective positions and their attitudes and willingness to settle. The attorneys representing the parties are a factor also. Is one or both counsel agreeable to consider settlement or are they insistent on litigation?

In my practice, I have tended to be a “hybrid” of these two approaches. I encourage settlement if it is in the client’s best interest, but if it’s not in the client’s best interest and further negotiation would likely not be productive, the client must be ready to go to trial.

For more information on How a Judge Decides Custody, please call (770) 271-1843 today to schedule an initial consultation. Get the information you need to make the best decision possible.

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