What Factors Does The Court Consider In Determining Child Custody?
First, let’s discuss what we mean by the term custody, In Georgia, we have “legal custody” and we have “physical custody.” I like to say that “legal custody” means the right to make, or at least have input into, major decision regarding the children, such as schooling, religion, medical care and treatment and extracurricular activities and sports. Normally courts will award divorcing parents “joint legal custody,” unless there is something bad on one side that would contraindicate that. The court will also, then, provide for a “final decision maker,” which is to say, the court will name one or the other parent to have the final say so if the two cannot agree upon an issue after discussing it. “Physical custody” refers to who do the children live with. There is indeed such a thing as “joint physical custody,” which means the children spend roughly equal time with each parent, but the courts normally do not award that unless the two parents agree to it, because it is such a hard thing to implement, and is impossible to do where the parents end up living far apart. Normally one parent or the other is awarded what we call “primary physical custody,” meaning the children live with that parent fulltime, and then the other parent is awarded “visitation.” Normal, or what the courts sometimes refer to as “standard” visitation, is usually every other weekend from 6:00 PM Friday to 6:00 PM Sunday, a month in the summer, and alternating holidays, which means, for example, Thanksgiving with one parent in even years and the other in odd years, Spring Break with one parent this year, and the other parent the next year, and so on.
[OCGA § 19-9-3] In deciding custody, the overarching legal standard that the judge is to apply is “the best interests of the child,” meaning the judge is supposed to do what is in the best interest of the children. The Georgia law or statute lists several factors the judge is supposed to take into consideration in applying that overarching standard, including, for example:
- the love, affection, bonding, and emotional ties existing between each parent and the child
- the capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child
- the mental and physical health of each parent
- each parent’s involvement, or lack thereof, in the child’s educational, social and extracurricular activities
- and there are several other factors listed, A through Q, and the law also provides the judge “may consider any relevant factor, including but not limited to…” these listed factors.
Another important factor when the children get older is what do they want. When children are 14 and older, their choice is “presumptive,” and the judge will normally go with that choice. Between the ages of 11 to 14, the judge is required to consider the child’s desires, but is not required to follow them.
A lot of people ask, doesn’t the mother always get custody here in an old fashioned state like Georgia? On paper, under the law, each parent is supposed to start with an equal presumption of being appropriate to receive custody. In reality, I agree that historically the judges in this state have tended to side with mothers, unless they had serious problems. Additionally, and often an issue around here, there has often been a bias against awarding custody to military parents due to the demands of their service. In recent years, however, this trend has dwindled, and more and more I have successfully obtained custody for fathers, even working and military fathers. I think times and attitudes are changing.
An important point on child custody. The judge always decides custody. In Georgia, you can still ask for a jury if you want one in a divorce. If you do, the jury will decide money issues, but the judge is the one who still decides custody.
Who Pays Child Support?
Normally, whichever parent does not get “primary physical custody” has to pay child support to the one that does, though there has been that very rare case where their incomes are so disparate that the custodial parent who makes so much more money than the non-custodial parent has been ordered to pay some small amount to the other parent so they can have a satisfactory household for the children’s visitations.
How Is The Amount Of Child Support Determined?
Thankfully unlike alimony, Georgia law provides some very specific guidelines for child support. It is calculated using worksheets and formulas that are established by law. You enter numbers into the worksheets and it spits out the presumptive child support amount, which the court will normally stick with, though there are some reasons or grounds to deviate from that presumptive amount, which we will discuss.
The main numbers that go into the worksheet are each party’s gross monthly income (that is how much they make each month on average before taxes or anything else is deducted), any medical and dental insurance costs attributable to the children, and any childcare costs. The worksheets and formula will then calculate how much each parent would owe the other if the other were to get primary physical custody. Now, there are reasons to deviate from that presumptive number. One big reason is for what they call a “travel deviation.” When the parents live far apart and one of them has to travel to see the children, or fly the children to see them, then that parent can ask for a decrease in the monthly child support amount to help offset those travel costs. Another reason is what we call a “parenting time deviation.” The worksheet formulas presume that the noncustodial parent will spend approximately 80-90 days a year with the children. If the parent spends more than that, then they can ask for a downward deviation to account for the added expenses they will incur having the children with them more than anticipated. Conversely, if they will be spending less than that amount of time with the children each year, the custodial parent can ask for an increase, an upward deviation, in child support.
For this and other issues it is important for military persons to get an attorney who understands military issues. For example, in calculating a military person’s monthly gross income for purposes of calculating child support, Georgia law says you normally only include Basic Allowance for Housing (BAH) at the without dependents rate and without the locality adjustment, not at the full, actual rate received. Attorneys not familiar with issues like this will not properly handle a divorce involving a servicemember on one side or the other.
For more information on Child Custody & Support Issues in a Divorce, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (912) 662-5555 today.
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