What are the legal issues when “custody” of the minor child(ren) decided?
Whether it is a divorce action or just a straight custody one, the main issue is the same, i.e., what is in the “best interests” of the minor child(ren)? If there has NOT been a prior LEGAL determination of custody, the biological parents start out with equal rights and on an equal legal footing – neither the mother nor the father starts out with an advantage, or disadvantage, with respect to custody decisions, despite what people may generally believe. This is even true in legitimation cases, where a biological father sues to establish his rights to a child born out-of-wedlock. Hence, mothers need to be careful not to assume that they will ALWAYS win custody battles and fathers need not be discouraged that they will USUALLY lose custody battles. The final decision always comes down to which parent might be the best “caretaker” and what is best for the child(ren).
What is the difference between the “primary physical custodian” and the “non-custodial parent”?
One of the parents is usually designated by the court as the “Primary Physical Custodial Parent.” This is the person whom that court has decided is best situated to provide a child with a warm, stable, loving, and moral environment and with whom a child will be primarily staying. The PPCP will be responsible for most of the parental responsibilities, although they can be shared with the other parent. Most importantly the PPCP has “veto” decision over all of the major decisions affecting a child’s life, such as which school to attend, which doctor to see, what extracurricular events with which to participate, which church, synagogue, temple, or mosque to regularly attend (if any), .... etc., and the other parent is powerless to object, unless the PPCP can be later shown “unfit” a very difficult prospect.
One of the parents is usually designated the “Non-Custodial Parent” and pays child support. This is the parent with whom a child either does not live or does not ordinarily live. The “non-custodial parent” is required to pay child support, based on a percentage of the first $75,000.00 of the non-custodial parent’s salary, any disparity of income between the two (2) parents, the number of children shared between the parties, and the number of other children being supported by the non-custodial parent. There are some factors that can reduce the percentage used to calculate the child support owed, such as shared custody, transportation expenses, health insurance expenses, and other factors.
What types of legal custody are there?
There are three (3) general types of custody – Sole Custody; Joint Legal Custody; or Shared Legal and Physical Custody. The judge decides which one to choose for each specific case, based on what is in the “best interests” of a child, however, there are some general concepts they judge will be applying.
- Sole Custody – Is where one parent has all of the legal rights a parent may have and the other parent only has, at best, some type of minimal visitation rights (usually supervised, if at all). Most of the time, when a judge is making a finding of “sole custody,” the other parent ends up with nothing. This RARELY happens and only if the other parent is shown to be “unfit” – a career criminal, domestic violence batterer, chronically addicted to a chemical or alcoholic substance, child molester, or truly “bad” parent.
- Joint Legal Custody – Is where both parents have the same legal rights, one of the parents is designated the “primary physical parent” and the other parent is designated the “non-custodial parent.” Judges will almost always favor this arrangement in a custody fight and the parties are fighting over who will be the primary physical custodian and non-custodial parent and/or about the visitation schedule. Judges feel that this arrangement is typically best for a child and gives both parents the most opportunity to be a part of a child’s life.
- Shared Legal and Shared Physical Custody – Is where both parents have essentially the same legal and physical custody rights. Judges will RARELY favor this arrangement in a custody fight, as it only works if the parties are getting along and the fact that they are in court indicates they do not. This arrangement, therefore, ONLY works if the parties agree to it – we generally discourage such agreement as it is usually NOT best for the children, invites litigation down the road, and makes for a messy situation.
What does the standard “best interests” of a child mean?
Georgia law favors a child having both a father and a mother involved in their life – this means that judges will generally try to decide custody battles to preserve that BOTH parents have the best possible relationship with their child(ren). On the other hand, most judges assume that the parents cannot get along enough to put a child’s interests first; that is often why you have a custody fight in the first place! So, a judge has to decide, as between the two (2) parents which would be the best parent. In doing so, a judge will look at a number of factors (this is not an exhaustive list or in any particular order of importance) like:
- Which parent is more “stable,” i.e., is likely to live in one place and not move around?
- Which parent has the best and most stable job situation?
- Which parent seems to be the most grounded in what is best for the child?
- Which parent is already the “primary caretaker” (probably the most important factor), putting a child to bed at night, feeding a child, taking a child to the doctor or most involved with a child’s school, including homework, . . . , etc.?
- Which parent has the best temperament and attitude towards raising a child?
- Which parent seems to have the best parenting skills?
- Is there any domestic violence present, or likely to be present, in a child’s life (either themself or with another relative or intimate relationship to which the child would be regularly exposed)?
- Is there any substance abuse present in either parent’s life (either themself or with another relative or intimate relationship to which the child would be regularly exposed)?
- Which parent is more likely to raise a child in a “moral” environment (this can include the existence of any boyfriends or girlfriends, past criminal history, down to something as mundane as whether or not either parent drinks alcohol or smokes cigarettes)?
On what “evidence” does a judge rely upon to decide “custody” of a minor child?
Obviously, either party to a custody fight can testify, but judges usually look for corroboration. Sometimes, this can be the testimony of a child, although judges will NOT generally want to listen to a child under age ten (10) testify. Often, family members and friends of either parent will testify, but a judge will typically listen carefully to such testimony for the natural “bias” of such witnesses. The best witnesses are “unbiased” witnesses, such as police officers, teachers, therapists, day care workers, and the like; and, the “best” evidence is something that a judge can direclty “look” at or “hear”, i.e., a statement/admission by the other parent, an e-mail, an audiotape (like a 911 call), a videotape, or pictures of injuries or property damage.
Who can be a “witness”?
Anybody can be subpoenaed to come to court as a witness. However, there is a common misconception that a witness has to directly see and hear an event. Rather, a “witness” can be someone to whom a statement was made, it could be someone who overheard something, or it could even just be a confidante (like a best friend or even a sibling or parent) about an event. A competent trial attorney will ALWAYS want to know about every such witness, as broadly defined, from his/her client and the attorney will decide who helps or hurts the client’s case.
How does the age of a child affect custody rights?
Children are generally not permitted to express which parent they want to live with, as the court system discourages putting the children in the middle of a custody fight. Obviously, as indicated above, children older than eleven (11) are permitted, by law, to exercise the right to speak their minds. A judge might be willing to listen to a younger child, but probably not younger than eight (8) or nine (9). This can create problems in a custody fight, in that a parent may want to testify about what the parent’s child has told them, but the court won’t permit them to do so, since this is inadmissible “hearsay,” unless the judge has also agreed (or is required) to listen to the child’s testimony.
George also has something called a “minor election.” In Georgia, when a child turns fourteen (14 ), the child has a presumptive right to declare with which parent he/she wishes to primarily live. A judge may overrule this choice based on the general standard for custody decisions, e.g., “best interests of the child.”
Children are generally not permitted to express which parent they want to live with, as the court system discourage putting the children in the middle of a custody fight. Obviously, as indicated above, children older than eleven (11) are permitted, by law, to exercise the right to speak their minds. A judge might be willing to listen to a younger child, but probably not younger than ten (10). This can create problems in a custody fight, in that a parent may want to testify about what the child has told them, but the court won’t permit them to do so; this is inadmissible “hearsay,” unless the judge has also agreed (or is required) to listen to the child’s testimony.
How do I go about changing our custody situation?
The parties are not limited by how often they may seek a change of custody or visitation. But, the rules are much stricter about what constitutes the type of facts permitting the judge to grant the request for the change. The legal standard is a “material change of circumstances” adversely affecting the welfare of the child.
Can the custody of a child ever change?
The parties are not limited by how often they may seek a change of custody or visitation. But, the rules are much stricter about what constitutes the type of facts permitting the judge to grant the request for the change. The legal standard is a “material change of circumstances” affecting the welfare of the child.
For instance, if either parent moves out-of-state, that might be a reason to justify a change in custody, or at least modifying the visitation schedule. However, BOTH parents have a constitutional right to move, so NEITHER parent can legally limit that right.
The custodial parent being arrested or moving the child into a home occupied by a criminal, might be enough reason to justify a change.
There is not, however, any hard and fast rule and each case must be carefully evaluated on its specific facts.