Physical Custody and Legal Custody
There are two components of child custody in Georgia: the physical component and the legal component.
Physical custody is what naturally comes to mind when someone hears the term custody; it refers to the physical location where the children reside at any given time.
The most common physical custody arrangement is one parent having primary physical custody with a grant of visitation for the other parent (a.k.a. parenting time). Because visitation is considered by some to be a punitive term that tends to diminish the non-custodial parent, judges in Georgia frequently substitute “visitation” with the term “parenting time,” which seems a little friendlier to divorcing parents. It is also the term used in the Georgia custody and child support statutes.
People who use the term “joint custody” usually are referring to shared joint physical custody, which entails the child or children being with each parent roughly 50 percent of the time. A joint physical custody schedule is not always strictly a fifty-fifty schedule, because although a judge may set up a week on/week off type of schedule, it is only one proposed schedule that reflects a joint custody arrangement. Joint physical custody can refer to any type of arrangement that gives the parent more than standard visitation (typically deemed around 22% of parenting time), so even a 60/40 arrangement can be referred to as a joint physical custody arrangement.
The other component of custody is legal custody, which is comprised of two subparts; one aspect involves the authority of a parent to speak to doctors, teachers, coaches and other professionals and to have access to school and medical records, among others. The other subpart involves the authority to make decisions on the children’s behalf when a situation warrants some kind of action. Decision-making ability is necessary in order to resolve an impasse that may arise when two parents disagree on the resolution.
In Georgia, the four main areas where disputes typically arise are in the areas of education, non-emergency medical care, extracurricular activities and religion.
Parents Working Together Regarding Joint Legal Custody Decisions
Sometimes, when a court is making a determination on joint legal custody, the judge will allocate the areas between the parents; i.e., the mother has final say in non-emergency medical care and religion and the father has final say in extra-curricular activities and education. Both parents must be able to consult in good faith when it comes to any kind of conflict, but when they are unable to agree, then the parent responsible for that issue will have the final say.
Finances as a Factor for Custody
Some parents worry that financial superiority is a factor that will hinder their ability to obtain custody. That can be true in an indirect way. If one party has resources to spend on a custody fight and the other does not or cannot obtain the funds in the short term, naturally the parent without monetary resources is at a disadvantage. A party facing contested custody issues should consider tapping in to all available sources of income (including loans from third parties, credit line on a credit card, savings, etc.). It is important to note that the court can award attorney fees in connection with divorce and custody actions from a party with superior income, but the court has wide discretion in the award of fees and often it does not happen until the end of a case. Most attorneys will require some kind of payment for representation up front so it is important for a party facing a custody dispute to marshal his or her resources at the outset of the litigation.
As far as a party’s economic stability as a factor in a custody award, financial condition is only one factor of many that the trial court may consider in its determination of custody for minor children. The legal standard for a custody determination is whatever is in the best interest of the child. A trial court has wide discretion in its determination of physical and legal custody awards, and as one may guess, it is a subjective decision that can vary greatly from judge to judge as to what constitutes a child’s best interest.
Experts or Third Party Representation Used in Child Custody Cases
There can be several different kinds of potential expert witnesses that can assist the court with custody determination, but the most common type of third party professional used in Georgia is the Guardian Ad Litem, who represents the children. It is preferable, but not mandatory, for the Guardian Ad Litem (also known as GAL) to also be a licensed attorney. A GAL is appointed by the judge in a high conflict custody dispute, either by the judge’s own motion or by agreement of the parties. Not all custody actions warrant the appointment of a GAL, who will need payment for their services. Most commonly, the parties will split the GAL’s fees, but one party may be ordered to pay all or the majority of the GAL’s bill, usually depending on the relative financial circumstances of each party.
The Guardian Ad Litem investigates each parent’s current or proposed home if they were to be granted custody of the children and may speak to numerous witnesses including teachers, coaches, neighbors, ministers and the like. Unbiased witnesses (meaning non-family members) carry the most weight as having the most objective insight to offer.
The Guardian Ad Litem may also speak to the children’s doctors if there is any kind of particular medical need that should be taken in consideration in a custody award.
Custody Evaluators
A custody evaluator is usually a psychologist or a psychiatrist who conducts a forensic interview with each parent, asking each party extensive questions and administering testing (along with their spouses, if the parents have already divorced and remarried). The evaluator will interview the children also and use all the information collectively to make a recommendation on what he or she concludes is the best type of custody arrangement for the children.
Psychiatric Evaluation
If a parent is thought to have some type of mental or emotional issue or personality disorder that warrants more of a medical diagnosis, a psychiatric or psychological evaluation may be ordered by the court to be performed by an appropriate doctor.
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