How the Judge Decides Custody in a Georgia Divorce

If the parties cannot agree on how custody will be handled, or agree to submit their custody dispute to arbitration, then there will be a contested temporary hearing and a final trial on custody. Only a judge can decide a custody matter so there can never be a jury trial on custody. Georgia Child Custody Attorney Russell Hippe has extensive experience handling these cases in the Atlanta area.

The court will base its custody decision solely on the “best interest” of the child or children - what will best promote the child's welfare and happiness. O.C.G.A. section 19-9-3(a)(2). O.C.G.A. section 19-9-3(a)(3) provides a list of factors the court should consider. These include:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and step siblings and the residence of such other children;
(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
(D) Each parent's knowledge and familiarity of the child and the child's needs;
(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
(I) The mental and physical health of each parent;
(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;
(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.

In a hotly contested custody fight, it is common to have a guardian and, sometimes, a psychologist involved to evaluate one or both of the spouses and the children. A guardian is a qualified individual appointed by the court to represent the best interests of the child or children. Once appointed, the guardian will be a party to the case, will report to the court and will testify at any hearing. The report and testimony of any guardian or psychologist carries great weight. The custody recommendation of the guardian is usually adopted. SeeGuardian ad Litems, Psychologists and Custody Evaluators. The parties can also make use of a parenting co-ordinator, an individual who will not report to the court but who can, informally, help the divorcing parents communicate and reach decisions together.

Generally, although per O.C.G.A. section 19-9-3(a)(1) there is to be no presumption of custody in favor of either parent, as a practical matter, absent unusual circumstances, or the recommendation of a guardian against her, the mother will usually be designated the primary custodian, although fathers are achieving growing success, especially in the metro counties. Status quo is a significant factor - what the kids have been used to – what has been working – what hasn’t.

Mr. Hippe or your Atlanta divorce attorney will prepare hard to present the most persuasive case possible to convince the judge the children will be better off if your custodial request is honored. Mr. Hippe has successfully tried many custody cases.

However, if a guardian or evaluatorhas been appointed or agreed, an early evaluation and recommendation by the neutral can be helpful in assisting the parties in coming to a resolution and settlement on custody.