Establishing Custody in a Court Case - Divorce or Legitimation

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There are a lot of things to consider when navigating the process of establishing custody in the state of Georgia.

It is an emotionally draining, tedious task that must be done with care and attention.

But don't worry - you don't have to go it alone.

Speaking with an experienced custody lawyer in your area will help put you at ease and guide you every step of the way - whether it's a divorce case or a legitimation case.

Divorces and Legitimations in Georgia - First Time Establishing Custody

If you are a parent in Georgia going through a divorce case or legitimation case, you may have questions about how the courts establish custody for the first time.

It's important to understand that the court's primary concern is the best interest of the child.

In making a decision, the court will consider a number of factors, including each parent's ability to provide for the child's emotional, physical, and educational needs.

Additionally, the court may consider the child's relationship with each parent, the child's preferences (if they are of a suitable age to express them), and any factors that may impact the child's safety and well-being.

While these cases can be emotionally charged, it's important to approach them with a level head and focus squarely on what's best for your child.

Custody Pre-Divorce or Pre-Legitimation

How does custody work before you get a divorce or before you as an unmarried father start the process for getting legitimated? Let's take a look.


When it comes to custody before a divorce for parents who are married, the default arrangement is joint legal and joint physical custody.

This means that both parents have equal decision-making power regarding their child's upbringing and care, as well as equal time spent with the child.

No court order is needed in this scenario since the parents are still officially married.

However, it's important to note that just because custody is divided equally pre-divorce does not necessarily mean that it's what's best for the child during and after a divorce.

It's always wise to have discussions with your spouse about what is in the child's best interest and potentially seek the guidance of a family law attorney before making any decisions, if you both are on speaking terms.

At the end of the day, considering what is best for your children first is what will mean the most in a custody case - even if you and your soon-to-be-ex spouse do not ultimately agree on what that looks like, because you'll have a goal in mind to best protect and support your children.


In Georgia, custody rights can be a complicated issue for unmarried fathers.

Georgia law has established "legitimation" as the court process for a father to be granted parental rights to his biological children.

Before the father is legitimated, the mother automatically has both legal and physical custody of the child.

This means that the father has no legal rights to custody, visitation, or decision-making for the child.

The only right he has pre-legitimation is to support his biological children through child support.

However, once the father is legitimated, he is granted legal recognition as the child's father and can then seek custody or visitation rights.

It is important for fathers to understand this process and take steps to legitimize their rights if they wish to have a say in their child's upbringing.

A good rule of thumb is to go ahead and file your legitimation petition with the court while you and the child's mother are still together and working together to raise your child.

That way, you can have your legal rights established and therefore protected should you and the child's mother ever break up or have a falling out - or in a worst case scenario, should the child's mother pass away, in which case you would not have any rights to the child if you weren't legitimated.

Custody During a Divorce or Legitimation

What about custody during an active pending case, like a divorce or legitimation?

How Custody Works During a Divorce Case

Divorce can be a difficult and emotional time for all parties involved, especially when it comes to determining custody of children.

In the state of Georgia, both parents are typically granted joint legal custody from the start of the divorce through the final divorce order on custody - unless the court determines that one or both parents should have their legal rights as a parent taken away during the divorce case.

While the divorce is pending, temporary physical custody arrangements are often established so the parents and children know what to expect and who will have the children and when.

Also, a guardian ad litem may be appointed by the court to investigate and provide recommendations to the court on the best custody situation for the child.

While the process may be complicated, the ultimate goal is always to prioritize the well-being and best interests of the child.

How Custody Works During a Legitimation Case

In a legitimation case in Georgia, the process of determining custody can be complex.

Because the parents were not married when the child was born, only the mother has legal and physical custody of the child.

It is up to the father to file to be legitimated, and in a legitimation case, the courts will first confirm that he is in fact the biological father of the child through a DNA test.

Once that happens, the court will move on and evaluate whether it is in the best interest of the child to grant legal custody to the father.

If so, the court will then consider whether physical custody or visitation rights should be awarded to the father.

Throughout this process, the court may appoint a guardian ad litem for the child to investigate the father's living and work situation, make recommendations regarding legal and physical custody to the court, and ensure the child's wellbeing remains a top priority.

It is important to remember that the court's aim is to make decisions that are most beneficial for the child's welfare.

Custody After a Divorce or Legitimation

When going through a divorce or legitimation process in Georgia, the ultimate goal for establishing custody is the creation of a Parenting Plan, setting forth the custody roles for both parents moving forward.

This can happen through an agreement between the parents, whether on their own or through mediation - or it can be ordered by the court after a lengthy trial where the court hears from all parties, witnesses, and the guardian ad litem to determine what the court thinks is best for custody of the child.

The Parenting Plan is then signed off on by the court, and it lays out each parent's responsibilities and outlines how custody will be shared.

It's crucial that both parents follow this plan, as failing to do so can result in being found in contempt of court.

While both parents can mutually agree to temporarily change an aspect of the Parenting Plan, such as switching weekends or holidays from time to time, if there is ever a disagreement on who has the children when, the parents must go by and follow the Parenting Plan to avoid being in contempt of court.

If you want to ever change your court-ordered custody agreement, you must go through the courts again to get a new and updated Parenting Plan and court order. Otherwise, you are bound by the original order and Parenting Plan.

To Sum It Up

Navigating a divorce or legitimation in Georgia can be complicated when it comes to establishing custody.

It is important to remember that all of the decisions made during these processes will directly affect the child and must be handled with care.

To give your child the best future possible, we always recommend speaking with and retaining an experienced, local, family law attorney who can provide you with legal counsel throughout these custody proceedings.

If you're in the North Georgia or Metro Atlanta area, feel free to reach out to us here at Your Law Firm, (770) 580-3699, to see how we can help.