Custody and Parental Rights in a Georgia Divorce

Custody under Georgia law is discussed in terms of legal and physical custody. Legal custody refers to decision making. Physical custody refers to the specific time when the child or children will be in each parent's physical possession.

If there is a contested custody dispute between the parents, the court will have broad discretion and will base any temp. or final decision on the "best interests" of the child or children. See, Urquhart v. Urquhart, 272 Ga. 548, 533 S.E.2nd 80 (2000). Atlanta Child Custody Lawyer Russell Hippe can help whenever this type of situation arises.

1. Legal Custody – legal custody is broken down into four main areas. Any settlement agreement or court order (if a matter goes to trial) will designate a final decision maker. Most divorcing spouses are usually both reasonably good parents (their disputes as divorcing spouses aside). The agreements and court orders (where a matter is tried) generally provide that there will be “joint legal custody” and the parties will work in good faith to make decisions together but, if the parties can’t agree, then there has to be a final decision maker in the below areas:

   1. Extracurriculars: Whether this area is important depends on the age and talents of your children. Extracurricular expenses for special athletics or camps can be expensive and disagreement can occur over how a child spends his or her afternoon time and weekends. If you have a particularly gifted child in some field – such as athletics – the final decision can mean a lot.

   2. Health Care: Again, the importance of this area will turn on the unique nature of your family. If you have younger children with health problems, and the parties do not generally agree on treatment, then final decision making is important. If your children are generally healthy and older, then this is less important. If your spouse is prone to alarmist reactions, or making unreasonable healthcare decisions, which can potentially drive up costs, then this is something to address in negotiations and/or present to the court in a request to control this area.

   3. Education: No party can be compelled to support a child beyond the age of majority – defined as the later of the date the child graduates from high school, if the child is 18, or 20 years old if the child has not yet graduated – or pay for private school. A party cannot be compelled at a trial to pay for college. However, a party can agree to this in a settlement agreement, which will be incorporated into a final order. Usually, final education decision making is only an issue if the parties have the financial resources to send the children to private school. The child or children will be zoned to attend public schools in the school district where the custodial parent resides.

   4. Religion: This is usually only an issue if the parties are of different fundamental religions or materially distinct denominations and upbringing in a particular church or religion is of particular importance. Absent an agreement to the contrary, the party with the visitation or parenting time on a given Sunday will have the right to take the children to a church of his or her own choosing.

2. Physical custody – physical custody refers to parenting time. The spouse with the greater parenting time (more than 50%) is designated as the "custodial parent", which is often referred to in settlement agreements as the “Primary Physical Custodian”. If the parties have equal parenting time, the spouse receiving the child support is designated as the "custodial parent" per O.C.G.A. section 19-6-15. The designation of "custodial parent" or "primary custodian" can have great significance if the spouse so designated wishes to move out of state with the children after the divorce.

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