Clients often come to me looking to “win custody” of their children. Whether the custody contest occurs within a divorce, modification, legitimation or other case requiring the entry of a formal parenting plan, all parents should understand the various types of “custody” that exist in Georgia.
There is no such official label in Georgia for one parent having “custody” of his or her child. Typically, when a client of mine seeks to “win custody” that parent is looking to become the ‘primary physical custodian’ that has ‘final decision-making’ authority over the major growth and development decisions to be made in raising the child. Though judges making custody awards will almost always designate one parent as the ‘primary physical custodian,’ the term ‘primary physical custody’ is actually not defined in Georgia’s custody laws.
Note that the designation of one parent as a ‘custodial parent’ is a requirement of a Georgia child support order (Title 19, Chapter 6 of the Official Code of Georgia), but such a designation within the child support framework is not the same as the key parental custodial designation within the parenting statutes (Title 19, Chapter 9). And while ‘primary custody’ also matters in the application of the child dependency tax exemption, Georgia definitions of custody are limited to: sole custody, joint legal custody and joint physical custody.
Under O.C.G.A. § 19-9-6:
“Sole custody” means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training, and the noncustodial parent shall have the right to visitation or parenting time. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights or parenting time.
“Joint custody” means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody.
“Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
“Joint physical custody” means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.
A few words on joint legal custody: As can be seen in the definitions above, joint legal custody is an important right for the ‘non-custodial parent,’ i.e. that parent who is not deemed to be the ‘primary physical custodian,’ because that non-custodial parent can participate in the making of major decisions. While it may be true that a strict reading of the statute might allow a court to virtually render joint legal custody meaningless by awarding one parent the “sole power” to make all decisions, it is far, far more common for a court to require that joint legal custodial parents discuss major decisions about the child in good faith with each other and that, in the event the parties cannot reach a consensus on a major decision, one parent will be designated as a final decision-maker. Often, one parent is awarded final decision-making authority on some issues, while the other gets final decision-making authority on other decision. Whatever the allocation of decision-making, case law holds that a Georgia court should not accept a joint legal custody arrangement where a method of resolving disputes is not put in place.
When one parent has shown little interest or capacity to participate in child-rearing decisions or if that parent’s judgment represents a potential hazard to the child’s overall welfare, joint legal custody may be improper, and “sole custody” of the child by the other parent may be the most appropriate parenting arrangement to appear in the parties’ agreed-upon or court-ordered parenting plan. With one parent having sole custody, the other parent is not entitled to participate in decision-making. Though the award of sole custody may appear to be the same award, in principle, as joint legal custody with one parent having final say on education, non-emergency healthcare, extracurricular activities and religious upbringing, joint legal custody still gives both parents “equal rights and responsibilities” on “major decisions” (even if decisions on specific categories of education, non-emergency healthcare, extracurricular activities and religious upbringing have been allocated).
Note, however, that another statute in the custody code requires that, irrespective of whether a parent a “sole custody,” both parents must acknowledge in the court-ordered parenting plan that: (A) a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest; (B) the child's needs will change and grow as the child matures and that the parents will make an effort to parent in such a way to takes this issue into account (so that future modifications to the parenting plan are minimized); (C) a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and (D) both parents will have access to all of the child's records and information, including, but not limited to, education, health, health insurance, extracurricular activities, and religious communications.
What seems, at first glance, to be the most purely equitable way to resolve the issue of custody when a parents’ relationship breaks down permanently is to enter into a true joint physical custody arrangement where “physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.” As to be explored in a separate article, however, Georgia courts are generally very hesitant to order or accept such a split-time arrangement for fears (real or imagined) over an absence of a singular foundational home for the child or the parents’ inability to effectively communicate in a manner that allows equal time to and responsibility to work for the benefit of the child.
Whichever custodial arrangement parents ultimately seek to anchor their parenting plan – whether by agreement or through contested court hearing – it is crucial for those parents and their attorneys to have a detailed understanding of the custodial arrangements available and defined in Georgia. With over 20 years’ experience in litigating child custody matters from A to Z, please consider hiring Fox Firm, P.C. to safeguard your parental rights and gain access to Fox Firm’s experience and knowledge of these myriad custodial arrangements to help you secure what is best for your children. Schedule an initial case evaluation with the Gwinnett County divorce lawyer from the firm today!