Georgia, like all other states, has its own body of law that the courts follow when awarding child custody. The Georgia courts’ primary concern in deciding child custody is “what is in the best interests of the child”. Almost every fact and argument made in court must be focused on what is the best interest of the child. See O.C.G.A. 19-9-3.

Under Georgia law, both parents are equal when it comes to child custody arrangements. The court may award joint custody or sole custody. When it comes to child custody laws, Georgia awards two types of custody: legal custody and physical custody. See O.C.G.A. 19-9-6.

Legal custody is the right to make major decisions regarding the child. With joint legal custody, both parents have equal rights and responsibilities to make major decisions concerning the child. However, if is our belief that one parent should have final decision-making rights for each of the four (4) major legal custody areas:

  • Medical
  • Educational
  • Extracurricular
  • Religious Decisions

The parents can split these final decision-making rights. For example, the Father may have the tie breaker for Medical and Extracurricular and the Mother may have tie breaker for Educational and Religious Decisions.

Physical custody refers to which parent the child lives with. With joint physical custody, both parents share substantially equal time and contact with the child. In awarding joint custody, the court may order joint legal custody, joint physical custody, or both. A common misconception regarding Georgia child custody law is that there is a provision in the law for “primary physical custody”. However, in a practical sense, the parent that has more than fifty percent (50%) parenting time with the child is common said to have primary physical custody of the child(ren).

In Georgia, children who are fourteen (14) years or older often make a custody election about which parent they would prefer to live with. However, it is important to understand, the court can overrule the child’s custody election if the Judge decides that living with the child’s preferred parent is not in the child’s best interests. O.C.G.A. 19-9-3(a)(5). Georgia law also provides for custody elections for children eleven (11) to fourteen (14) years of age. However, the court can choose to ignore the child’s election and go straight to the Judge’s decision on what is in the best interest of the children. See O.C.G.A. 19-9-3(a)(6).

According to the child custody laws in Georgia, a parenting plan is required for any custody agreement. See O.C.G.A. 19-9-1. The parenting plan should include provisions that respect and acknowledge that:

  • a close and continuing parent-child relationship and continuity in the child’s life is in the child’s best interest;
  • a child’s needs change and grow as the child matures, and that the parents will consider this in order to minimize future modifications;
  • the parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with that parent;
  • both parents will have access to all of the child’s records and information, including matters concerning education, health, extracurricular, and religious instruction.

Unless parents agree or the judge decides otherwise, a parenting plan will also usually outline:

  • where the child will spend each day of the year. A good parenting plan will contemplate times when a parent may have to be out of town for business and for emergencies.
  • how holidays, birthdays, vacations, school breaks, and other special occasions will be spent. Most parenting plans alternate major holidays and the children’s birthdays. Assuming that the parents live close enough to each other, the children should spend Mother’s day with the mother and Father’s day with the father.
  • transportation arrangements, including how and where the child will be exchanged and how transportation costs will be paid. Travel time, stress on the child(ren) and traffic considerations should be contemplated when making transportation decisions.
    if supervision of the parent’s visitation is needed, and if so, the details of the supervision.
  • how the parents will allocate decision-making authority with regard to the child’s education, health, extracurricular activities, and religious upbringing. If the parties agree the matters should be jointly decided, the parenting plan will outline how to resolve a situation in which the parents disagree. It is wise for one parent to have tie-breaking authority if needed.
  • what, if any, limitations exist while one parent has physical custody in terms of the other parents contacting the child and the other parent’s right to have access to information regarding the child. However, the parenting plan should provide for ample time and ways for the parents to communication with their children. A good parenting plan will contemplate the use of Skype (and similar services), email, telephone (land lines and cell phones), and communication through internet social media.