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Top Client Custody Questions

Frequently Asked Questions

As Georgia family law attorneys, the attorneys at Meriwether & Tharp often are asked questions concerning child custody. Below is a list of questions that we are most often asked, along with a brief answer. This list will give you some insight concerning child custody issues in Georgia. If you would like more detailed information concerning your child custody case, call and speak with one of our family law professionals today.

Q: What is the difference between legal and physical custody?

A: Physical custody refers to where the child lives and who has responsibilities associated with the child’s daily care. Legal custody refers to the decision-making responsibilities associated with the education, extracurricular activities, healthcare and religious upbringing of a child.

Q: Are mothers more likely to be awarded custody over fathers?

A: No. In Georgia, child custody is determined based on the best interests of the child or children involved. Courts presiding over child custody matters will not presume that either parent is better suited for custody, nor will a court prefer one parent over the other based solely on gender. Read More

Q: What is joint custody? Is it better?

A: Joint custody is a 50/50 custodial arrangement, where the child spends an equal amount of time with each parent. Often times, joint custody also involves parents sharing decision making responsibility concerning the child’s educationextracurricular activities, healthcare and religious upbringing. While no one solution is right for everybody, children benefit from the ongoing involvement of both parents and a joint custody arrangement may be a way to ensure that both parents maintain an active role in the lives of the children. However, a joint custody arrangement may be difficult to maintain if the parents are not living in the same area or if the parents cannot work well together.

Q: When parents cannot agree on custody, how does the court decide?

A: In Georgia, courts determine child custody by considering what would be in the best interest of the child or children involved. The factors a court may consider include: the parent’s ability to provide a loving and stable home environment for the child, the pre-existing relationship between parent and child, which parent has been the primary caretaker of the child, the parenting abilities of each parent and whether either parent has a history of child abuse or neglect.

Q: What if the current custody arrangement is not fitting my family’s needs?

A: It is not always easy to modify a custody arrangement that has been ordered by the court or agreed upon by you and your child's other parent. But, it is possible. It is typically more difficult to modify a currently existing custody arrangement than it is to create one in the first place. In Georgia, there must be a substantial change in circumstances before a court will grant a modification of child custody.

Q: If my child's other parent is behind on child support payments, can I prevent his or her visitation?

A: Parenting time or visitation is not dependent on child support. Thus, one parent may not withhold child support in exchange for visitation rights, and the other parent may not withhold visitation in the absence of child support payments. If the non-custodial parent in your case is behind or refusing to pay child support, you have other remedies available to you, like going to court and filing a contempt action against the delinquent parent or visiting your local child support enforcement office to collect past-due child support payments.

Q: I want to move to another state with my child. Can I do that?

A: As with the initial custody determination in Georgia this issue is determined with the best interests of the child in mind. A court will weigh several factors, including but not limited to the child’s ties to local schools and friends, the child’s age, the custodial parent’s reasons for relocating, and the stress and instability of relocation and the corresponding benefits of consistence and stability for the child.

Q: If the judge in my divorce case orders a custody evaluation, what should I do?

A: Custody evaluations are often a regular part of contested custody cases. It is important to cooperate with the custody evaluator as the evaluation is designed to find out what is in the best interests of your children. If any concerns arise during the evaluation, share them with your attorney.

Q: If my ex-spouse moves to another state, may he or she change the custody order there?

A: Many states, including Georgia have adopted a statute called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This act sets standards for when a Court may make a custody determination, when a court must defer to an existing determination from another state and when and how a state may enforce a preexisting child custody order from another state. This law helps standardize how custody orders are treated which in turn helps solve many problems created by disagreements over custody between parents living in different states. Generally, a state may make a custody decision, or modify a pre-existing decision, only if the following criteria are met:

(1) The state is the home state of the child on the date the modification proceeding is initiated, or the state was the home state of the child within six months before the modification proceeding was initiated and the child is currently absent from the state but a parent or person acting as a parent continues to live in the state;
(2) A court of another state does not have jurisdiction under section (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that the state seeking to modify is the more appropriate forum … and:
      (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with the state other than mere physical presence; and
      (B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under sections (1) or (2) have declined to exercise jurisdiction on the ground that the court seeking to modify is the more appropriate forum to determine the custody of the child; or
(4) No court of any other state would have jurisdiction under the criteria specified in sections (1), (2), or (3) above.

Additionally, the court of the state which entered the original order must have determined it no longer has exclusive, continuing jurisdiction over the matter under the UCCJEA; or that a court in the state seeking to modify the order would be a more convenient forum under the UCCJEA; or that a court of the state seeking to modify the order; or a court of the state which entered the original order determines that neither the child nor the child's parents or any person acting as a parent presently resides in the other state.
If the above mentioned criteria are not met, the state in which the non-custodial parent is seeking a modification may not enter an order modifying child custody. However, the court of that state may seek to modify a preexisting order if the child has been abandoned or a modification is necessary to protect the safety and welfare of the child involved.

Q: My ex-spouse has failed to return our children on time after taking them for a visit, and I am scared one day that he or she will not return them at all. What are my rights as the custodial parent?

A: If one spouse refuses to abide by the court ordered visitation schedule or custody arrangement, that parent is in contempt of court. In other words, it is illegal for either parent to disregard or disobey the court‘s order concerning custody and visitation. Thus, if the non-custodial parent in your case has failed to comply with your custody order, file a contempt action against that spouse. This action will allow you to seek the help of the court in enforcing your agreement. Alternatively, if your current custody arrangement is no longer suitable for your family’s needs, consider seeking a modification of child custody.

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