Of all areas of the law, perhaps nothing is as fraught with emotion as child custody cases. A divorce can be exhausting, triggering tough decisions about dividing up property and dissolving personal bonds. Factor in a battle over children, and a bad situation can quickly get worse.
If you are facing a custody battle, you may be feeling powerless. You may be feeling like you are going to lose someone who means more to you than anything else in the world. At the Claiborne Firm, it is our sole focus to help you regain your power. We want the worst day of your life to be the day before you hire us, because from then on, we will help you regain your power and eliminate the fear of losing your children.
Before custody of your child is officially determined, you can expect to attend a temporary hearing a month or so into the filing. This will determine who gets custody of the child or children on a temporary basis until permanent custody is determined at the trial or before the final hearing. This provides the child some semblance of stability during a trying time.
Under most circumstances, this petition for temporary custody should be filed in the county in which the defendant resides. Either party in the divorce case can file for an action concerning temporary custody by filing a “rule nisi” with the court, and temporary custody will be determined based on the best interests of the child.
Following this temporary hearing, a judge will determine permanent custody arrangements going forward. According to The Official Code of Georgia Annotated (OCGA) § 19-9-3, a judge must weigh several factors in determining what is in the best interest of the child, including but not limited to:
Recommendations for the judge in each of these categories can be determined by the parents, their attorneys, a custody evaluator who will meet with the parents and determine the overall situation or guardian ad litem who will speak for the child’s best interests in court.
Once custody is determined, orders remain in place until the child turns 18.
There are several different categories of child custody, with the exact type being determined by the judge during trial. When a parent has physical custody of a child, that child lives in their household. When a parent has legal custody, a parent does not necessarily live with the child, but that parent has the right to make decisions on the child’s behalf.
Either physical or legal custody is often shared between parents, with one typically being designated the primary custodial parent and having the final word in any decision affecting the child. With joint physical custody, parents will share parenting time based on an agreed-upon schedule, but this can be rare in the state of Georgia, as judges tend to be biased against equal parenting time.
The judge will have the final say on custody during the divorce trial, but afterward custody can be modified based on a variety of circumstances. In some cases, one parent contests custody based on a change of circumstances. In others, the child can request a change in custody. In extreme cases, an emergency custody can be filed.
In order for a parent to modify custody, they must prove that the parent with custody is no longer able to or suited to retain custody. This can be due to a change in living conditions or circumstances and can be filed at any point after the judge’s initial decision, as long as it is in the best interest of the child.
A child who is between the ages of 11 and 14 can also request that custody be granted to one parent over another. Again, this is based on the best interest of the child and is generally granted on a trial period of up to six months. If the child is older than age 14, their request will be presumptive unless the judge determines that their choice would prove less beneficial to their wellbeing.
We prepare as if each case will go to trial. Because of that thorough preparation, most of our cases never make it that far, resolving through alternative dispute resolution or mediation. We’re proud of our track record of resolving cases prior to trial.
We know it’s important for our clients to maintain amicable relationships with their spouses so they can comfortably take part in life’s milestone events like a child’s graduation or wedding. We know our clients also want to maintain good relationships with their children after the divorce. We work to get our clients everything they want and deserve without destroying their relationships in the process.