Child Custody in Georgia: Best Interests, Parenting Plans and the Child's Choice at 14

Georgia decides custody under O.C.G.A. § 19-9-3 and requires a parenting plan in every case where custody is at issue (§ 19-9-1). The judge decides custody; unlike property and alimony, it isn't decided by a jury.

Types of custody

• Legal custody is the right to make major decisions about the child's education, health care, religion and extracurricular activities. It can be joint or sole.
• Physical custody is where the child lives. One parent may have primary physical custody with parenting time (visitation) for the other, or the parents can share physical custody.

No presumption for either parent

Since the 2007 reforms that took effect January 1, 2008, Georgia law gives no presumption in favor of either parent and no presumption for or against any particular form of custody, such as joint custody. The court decides based on the child's best interests.

The best-interest factors

O.C.G.A. § 19-9-3(a)(3) lets the judge consider "any relevant factor" and lists seventeen. In plain terms:

• each parent's love, affection and emotional ties with the child (A), and the child's ties with siblings, half siblings and stepsiblings (B);
• each parent's capacity and disposition to give the child love, guidance and education (C), and knowledge of the child's needs (D);
• each parent's ability to provide food, clothing, medical care and daily care, taking child support into account (E);
• each home's environment, judged by nurturance and safety rather than material things (F);
• continuity in the child's life (G) and the stability of each family unit and its support systems (H);
• each parent's mental and physical health (I);
• each parent's involvement in the child's school, social and extracurricular life (J), and work schedule (K);
• the child's home, school and community record and any special needs (L);
• each parent's past parenting and ability to parent in the future (M);
• each parent's willingness to encourage a close and continuing relationship with the other parent (N);
• any recommendation by a court-appointed custody evaluator or guardian ad litem (O);
• any evidence of family violence, sexual, mental or physical child abuse, or criminal history (P); and
• any evidence of substance abuse (Q).

Not every factor applies in every case, and the judge weighs them together.

Family violence

Evidence of family violence matters. The Judicial Council's domestic violence benchbook notes that the judge can't refuse to consider such evidence just because there was no earlier finding of family violence, but also that, unlike some states, Georgia law has no presumption against awarding custody to a parent who has committed family violence. The court weighs it among the best-interest factors and can order supervised visitation or other protections.

The child's choice at 14

Georgia gives older children an unusual voice. O.C.G.A. § 19-9-3(a)(5) provides:

(5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.

The election can be made only once every two years, and on its own it can be a material change in circumstances that supports a request to modify custody. For children 11 through 13, the judge considers the child's wishes and educational needs, but the child's preference doesn't control (§ 19-9-3(a)(6)).

Some courts provide a form for this; Fulton County's is an Affidavit of Election, which the child signs before a notary stating which parent the child wants to live with.

Parenting plans

Each parent must prepare a parenting plan, or the parents can file one together, and the final order must incorporate a permanent plan (§ 19-9-1). Uniform Superior Court Rule 24.10 requires a parenting plan in final custody and modification cases and contains the standard form. The plan must say where and when the child will be with each parent, "designating where the child will spend each day of the year," along with holidays, decision making, and how the parents will resolve disputes.

Parenting seminars and guardians ad litem

• Parenting seminar. Under Uniform Superior Court Rule 24.8, each judicial circuit may set up a program of no more than four hours for parents in domestic cases, and the court can order attendance. Many counties require it (Fulton and Gwinnett, for example). Fees must be waivable for parents who can't afford them, and the judge can excuse attendance for good cause.
• Guardian ad litem. In a contested case, the court can appoint a guardian ad litem, who represents the child's best interests and reports to the court (Rule 24.9).

Relocation

Georgia law requires a parent who plans to move to give the other parent written notice in advance (O.C.G.A. § 19-9-3(f)), and the custody order often sets its own notice requirements. A move that significantly changes the child's circumstances can lead to a request to modify custody, which the court decides by the child's best interests.

Changing a custody order

Either parent can ask the court to modify custody when there has been a material change in circumstances affecting the child, and the court decides what serves the child's best interests now.

Where these sections live

• Uniform Superior Court Rule 24.8 — Parenting seminars
• Uniform Superior Court Rule 24.9 — Guardians ad litem
• Uniform Superior Court Rule 24.10 — Parenting plans
• Williams v. Williams, 301 Ga. 218 (2017) — parenting plans
• Fulton County Superior Court: family law forms