Custody: "I want my parental rights to my child"
Establishing Your Parental Rights to Your Child - How We Can Help
Are you a parent in Georgia looking for help with establishing your parental rights? You've come to the right place. At Your Law Firm, we understand that custody of children can often be one of the most difficult topics to navigate during any divorce or case involving children. While child custody battles are rarely easy, it's important to remember that both parents have an equal right to receive legal recognition and protection under their states laws—and that includes you too. It's important to be prepared, both with knowledge and emotionally, if you think you'll be in any sort of custody fight. And make sure you consult a local family law and custody attorney in your area to answer any questions you may have. Let's continue learning more about custody cases in Georgia.
Overview and Definition of Custody in Georgia
Custody battles in Georgia can be emotionally exhausting and complex affairs. Usually, we see these play out in a divorce case, where two parents are ending their marriage to go their separate ways, or in a legitimation case, where an unwed couple has a child together, and the father is seeking to establish his legal right as a father and also gain custody rights as well. There are other types of custody, too, be it Grandparent Custody or Stepparent Custody, however those are not nearly as common as cases of custody between two parents over their child or children.
Legal vs. Physical Custody
Georgia recognizes two types of custody: legal custody and physical custody. Legal custody is what makes a parent a parent in the eyes of the law. If you do not have legal custody, you are not a parent. The US and Georgia constitutions both protect the rights of parents to be parents legally to their children. You must overcome a great hurdle in order to terminate the legal custody rights of a parent. Physical custody is more of what you're used to seeing the custody battles over - where one parent has primary physical custody and the child lives with them most of the year, the other parent has secondary physical custody with visitation rights accordingly. Therefore, what is common to see is joint legal custody shared by both parents, and then one parent be named the primary physical custodian, and the other parent is granted visitation rights.
In a divorce case, physical custody can be one of the most contentious issues, with both parents vying for primary physical custody of the child. Similarly, in a legitimation case, the father may seek legal custody first to be established as the child's father, and then seek physical custody or visitation rights.
Court Factors for Custody
Georgia courts take into account several factors when making decisions about custody, including the child's needs and welfare, the parents' ability to provide for the child, and the child's relationship with each parent. Also, as the child gets older, the child can actually have a say in which parent they live with most of the time - typically you'll see this happen at 14 years or older.
Changing or Modifying Custody
If you get a custody order that you are not happy with, do not stress too much about it. In some cases, modification of custody may be necessary due to a change in circumstances. You can either approach your ex and try and work something out, or you can petition the court system to change your custody situation, once every two years, provided you can prove or support why it should be changed. Whatever the situation, it is important to work with an experienced custody attorney in your area (or the area where the original court custody order came from) who can advocate for the best interests of your child while navigating the legal system with you.
Custody in a Court Case - Divorce or Legitimation
When it comes to divorce or legitimation cases in Georgia, determining custody can be a difficult and emotional process. Here are some of the steps courts take in order to streamline and assist in the process.
Guardian ad Litem (GAL)
In order to ensure the best interests of the child, courts often appoint a guardian ad litem (GAL), an attorney who acts as a neutral party to represent the child and provide recommendations to the court. The parents usually split the cost 50/50 of paying for the GAL's services, though some courts may require one parent to pay more or all of the costs upfront, depending on the circumstances.
Mediation can also be a helpful tool in reaching a custody agreement outside of court. Most court systems require the parents to attend mediation before they will hold a final trial on a case. This is a great opportunity to sit down with your lawyer and a third-party neutral - the mediator - who acts as a go-between for you and your ex or soon-to-be-ex to try and come to an agreement on custody for your case. A lot of times a mediator can help identify areas of compromise, allowing you and the other parent to make an agreement you feel comfortable with, rather than having a judge decide what your lives will look like as parents for the foreseeable future.
Ultimately, unless you agree otherwise, the court will make the final decision about custody based on a variety of factors, including the child's relationship with each parent, the mental and physical health of each parent, and the child's needs and wishes. This decision will be written down in a document called a Parenting Plan - whether as a result of an agreement at mediation or a result of the court's order on custody - and it will act as the fallback law for custody and visitation and parenting time moving forward. The Parenting Plan will be incorporated into the Final Order of your case (whether a Divorce case or Legitimation case) and will be what both parents use to exercise their custodial rights moving forward.
Changing Custody after a Divorce or Legitimation
In the state of Georgia, once custody has been established by a court by nature of a Parenting Plan, can you ever change it? Yes, it is possible to change it, however it must be done with the court system as a new case in order for it to be valid.
In order to proceed with this kind of case, called a modification case, the parent wishing to change the custody order must demonstrate what is known by law as a "substantial change in circumstances" since the original order was made. This could be due to various reasons such as a change in the parent's living situation or health, or the child's needs have changed. However, modifications cannot be made whimsically, as Georgia law typically requires a two-year waiting period before a new modification can be filed. It is possible to work with the other parent and come up with a new custody order and Parenting Plan - just know that you still have to submit all the paperwork to the court and present it to the judge to sign off on, in order for it to be valid and enforceable.
If a parent moves out of state, the situation becomes more complicated. In this case, it is necessary to comply with the Interjurisdictional Custody Act (UCCJEA) in order to legally move forward. In some cases, you can keep the case in Georgia, but in other cases, you may have to file your court action for custody in the other parent's new state.
It can be challenging to navigate the legal system alone with changing a Parenting Plan, which is why it is always beneficial to seek professional guidance from an experienced family law attorney who often handles cases in the courthouse where your original order was in - or where you need to be in order to file for modification, if out of state.
Enforcing an Out-of-State Custody Order in Georgia
If you have recently moved to Georgia with a custody order from another state, you may be wondering how to enforce it here. The process is known as "domestication of a foreign decree" and it involves filing a certified copy of the custody order with the appropriate Georgia court, along with other case initiating paperwork. Generally, this court will be the superior court of the county where you now live. Once filed, you will need to properly serve the other parent with a copy of the domesticated decree. It is important to follow all procedural rules and requirements when going through this process to ensure that the order is successfully domesticated and thus able to be enforced. Due to the technical nature of these types of custody cases, we always recommend seeking out a local attorney in the county where you now live in Georgia to assist you with this process.
Understanding custody can be a complicated process and every situation is unique. It is important to have knowledgeable legal representation if you find yourself in a dispute over custody whether you are in Georgia or another state. Depending on your case, custody may be shared physical and legal between both parents or allocated solely to one parent in either a primary or sole capacity. If an out-of-state order has been issued, it must be enforced in Georgia as per the appropriate procedure. In most cases, all parties benefit if custody agreements are worked out through mediation instead of litigation. Ultimately, having the right guidance is key to protect your rights and give you peace of mind that all parties involved – especially the children – are kept safe and well cared for throughout this process.