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Family Law FAQ’s

Family Law FAQ’s

 Child Custody And Visitation (Parenting Time)

 What are the different types of child custody that I could ask for?

There are basically two aspects of custody under Georgia law, legal custody and physical custody.  You should consult with an attorney to determine which type or combination of legal or physical custody is best for your situation. 

 What is Legal Custody versus Physical Custody?

Legal Custody has to do with access to information and authority to make decisions concerning your child.  In situations where the parents cannot agree on how best to carry out decisions with regards to the general welfare of the children, the parent with primary legal custody is typically the parent with the authority to make the final decisions regarding the child’s health, education, extracurricular activities, religion and travel.  Very Often both parents may have Joint Legal Custody in which case the final order needs to specify which parent has final decision making authority in each major area.

Physical Custody has to do with control over where the child physically resides or spends their time.  The parent with primary physical custody is typically the parent that the child lives with the majority of the time.

What is Joint Legal Custody?

Joint legal custody means that both parents have the right to make decisions affecting the children and equal access to information concerning the children.  This means each parent will have equal decision making authority with regards to health, religious education, education, extracurricular activities and travel.  If awarding joint legal custody, the court is likely to require consultation between the parents on significant decisions but will typically designate one parent as having final decision making authority for some or all of the major areas in the event of a dispute between the parents.

 What is Joint Physical Custody?

Joint physical custody means the children will spend roughly equal time with each parent.  However if one parent has the child the majority of time they are the custodial parent, or may be referred to as the primary custodial parent.   

If the parents can’t agree on custody, how will the Court determine custody?

For contested custody cases the judge will look at all the facts surrounding the individual case.  The judge will evaluate the evidence and make a decision based on the “best interest of the child”.   Once an order regarding custody has been entered, it can only be changed by agreement of both parents or by filing a petition to modify custody with the court. 

What do you have to show to modify a prior custody order?

In order to have a Petition to Modify Custody considered you must be able to prove there has been a material change of circumstances that substantially affects the interest and welfare of the child, and you must be able to offer evidence to prove the allegations.  You must also be able to prove it is in the child’s best interest, when all factors are taken into consideration, for custody to be modified.

My fourteen (14) year old told me that he now wants to live with me instead of the other parent.

Once a child reaches the age fourteen (14) years or older, he or she may “elect” which parent they would like to live with.  However the judge will still decide which parent the child will live with based on the “best interest of the child” considering all the factors of the case, and will not simply automatically accept a 14-year-old child’s election.     

My eleven (11) year old told me that she wants to live with me instead the other parent.

Georgia courts will take into consideration the desires of a child between the ages of 11 and 13, while considering a change of custody.  However the child’s desires alone will not be sufficient enough to warrant a change of custody.  The moving party must also be able to prove there has been a recent material change of circumstances that substantially affects the interest and welfare of the child and that it is in the child’s best interest to change custody.

My ex-spouse moved from Georgia to California with our child within the last 6 months.  Where should I file an action to change custody to me?

Generally, if a court in the State of Georgia issued the most recent order regarding the custody and visitation of your child, it is reasonable to assume that Georgia is the proper venue to file your action.  However, once your action is filed, the Georgia Court may decide it no longer has a significant connection or that substantial evidence is no longer available in Georgia.  Each case presents its own circumstances therefore, it is best for you to consult with an attorney before filing your action.

Will the court use a psychologist to help in its decision regarding custody and visitation?

If requested by one or both of the parents the court may appoint a psychologist to conduct various types of evaluations of the parents and/or of the child in custody or visitation actions.

Can the court use a Guardian Ad Litem (GAL) in custody cases in Georgia?

The Court may order that a Guardian Ad Litem be appointed to represent the best interests of the child in your case.  Please review our Guardian Ad Litem FAQ page for more information on the use of a Guardian Ad Litem.

What is Parental Alienation and can this be considered when evaluating custody?

Parental alienation is the act of one parent trying consciously or unconsciously to persuade a child to dislike or reject the other parent.  Courts may consider evidence of parental alienation when deciding the outcome of custody and visitation matters.

 

Child Support

How does the Court determine whether to modify a parent’s child support obligation?

The current child support guidelines were established in 2007 to consider the income and debt of both parents in order to determine the monthly child support obligation.  In order to file a petition to modify child support there must be a substantial change in either parents’ income or financial circumstances or in the financial needs of the child.  Each case is judged separately and is subject to the child support guidelines. 

How often can I file a Petition to Modify Child Support?

A petition to modify child support can be filed after two (2) years have passed since the most recent child support order was entered.  However, a petition for modification of child support can be filed less than two years under certain circumstances described in the child support statute.  

What are some examples of a “change is circumstances” that the Court will consider during a modification of support action?

In order for the judge to determine if a modification of support is warranted the judge will consider many factors, including significant changes in either parents’ current income, the loss of a  job, the financial history of both parents, changes in child care needs so that a parent can work or pursue their education, the changed needs of the child such as, education, medical needs, or other special needs of the child, extracurricular activities, whether either parent has to travel significantly to exercise parenting time, medical insurance, and a variety of other possible considerations. 

Where should I file a Petition to Modify Child Support?

If you are the moving party (the Plaintiff) you must file the Petition for Modification in the county that the receiving party (the Defendant) lives.  If the Defendant lives outside the State of Georgia, you may be able to file the Petition for Modification in the county where you live. However, an attorney will best be able to advise you with regards to the proper filing procedures for your case.

If our child were to come live with me, can I stop paying child support?

Unless or until your child support obligation has been modified or terminated by the Court you are required to continue paying child support as ordered in the most recent Order from the Court, even if your child comes to live with you.  Simply discontinuing your child support payments could place you in contempt of Court.  In order to protect yourself from being found in contempt you should petition the court for a modification of child support (and custody) based on the new custodial arrangement. 

What can I do if the non custodial parent stops paying child support?

If the non custodial parent stops paying child support you can file an action to enforce the child support order asking that they be found in contempt of court for failure to comply with the court’s order.  Please see our section on contempt and other enforcement actions.

 

Contempt And Other Enforcement Actions

 What is contempt of court?

Contempt of court means the willful violation of a court order.  A contempt action is typically initiated when one party files a Motion for Contempt or Petition for Citation of Contempt.  Probably the two most common types of contempt actions in the family law arena is for failure to pay child support as ordered or refusal to allow court-ordered visitation.  But there can be a variety of other reasons for bringing a contempt action due to a party’s refusal to abide by the court’s order.

What are some possible defenses for contempt?

The two most common defenses for contempt are:  (1) the court’s order has not actually been violated, or (2) the violation was not willful.  For example, proof of a genuine inability to pay a child support arrearage may be a defense to the failure to pay court-ordered child support, such that a party may not be held in contempt.  However, there will have to be documentation establishing a genuine inability to pay and the offending party will still have to pay the arrearage over time.

What happens if the Court finds that someone is in contempt?

Several things could happen if the Court finds that someone is in contempt.  Some common outcomes might be:  (1) the offender can simply be ordered to comply with the order and/or pay any arrearages (often within a certain timeframe); (2) the court my give a warning of incarceration if the contempt continues; (3) the Court may order incarceration without warning, until the offender complies;  or (4) the Court might also require the offender to pay the other side’s attorney’s fees.

Can the Court punish someone for contempt?

Yes.  The Court can not only take steps to ensure that the offender complies with its order, but it can also hold him or her in criminal contempt and punish them by making them pay a fine and/or serve time in jail for each violation.

How do I prevent being falsely accused of contempt?

With regards to child support payments, be sure to keep receipts, bank records, and a running log of all support payments you have made or received.  With regards to visitation, you should keep detailed records of visitation schedules, regular visits made or attempted, and visits that have been canceled or rescheduled, or in extreme situations perhaps consider bringing witnesses to visitation exchanges. 

Does the same judge who heard the original case also hear the contempt case?

A Motion for Contempt or a Petition for Citation of Contempt should be filed in the court where the original order was issued. The same judge, who issued the original Order, will typically be assigned to handle the contempt action.  However some exceptions may apply, for which, you should consult with an attorney.

 

Third Party Custody

That is Third Party Custody?  Who is Commonly Considered?

Third party custody means that someone other than the legal biological parents of a minor child has been granted legal and/or physical custody of a child.  It is not uncommon for adult siblings, aunts, uncles, or grandparents of the minor children involved in a custody dispute to petition to the court for third party custody when warranted by the circumstances.

What is the Standard for Giving Extending Family Third Party Custody?

Because the law strongly favors the right of legal parents to raise their own children, the burden is high for proving that granting third party custody of a child is authorized.  If the Petitioner is an extended family member mentioned in the third-party statute – i.e., a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling – the Petitioner must first prove, by clear and convincing evidence, that the child will suffer physical or significant emotional harm if the custody were retained with the legal parent.  Then the Petitioner would have to prove that awarding the third party custody would be in the best interest of the child when all the facts and circumstances are taken into account.

What is the Difference Between Extended Family Members and Non-Family Members Asking for Third-Party Custody?

The standard is even higher for persons not listed as extended family recognized in the third-party custody statute to get third party custody of a child.  In that case, the non-family third party must prove by clear and convincing evidence that the legal parent is presently unfit, and then that granting the third party custody is in the best interest of the child.

Are Adoptive Parents Considered Third-Parties in Custody Disputes?

Oddly enough, adoptive parents were included as third parties in the third party statute (O.C.G.A. §19-7-1(b.1)).  However, in 2012 the Georgia Supreme Court (in the case of Hastings v. Hastings) sensibly reinterpreted the third party custody statute to recognize adoptive parents as having equal rights to custody as a legal biological parents, and not as third parties, in custody disputes.  (See our Blog for an in depth discussion of this case).

 

Domestic Violence

What assistance does Georgia law provide regarding Domestic or Family Violence?

If domestic violence has occurred, the offender can be criminally prosecuted.  In addition, the court could issue a Temporary Protective Order (TPO) against the accused abuser to protect the abused person and their children.  Such an order may impact the offender’s ability to carry a firearm.  If a Temporary Protective Order is violated, criminal arrest and charges could result.

 What is a Temporary Protective Order (TPO)?

If you are a victim of domestic violence and are in reasonable fear for your safety, or that of your child, you can ask the court for a Temporary Protective Order (TPO).  A protective order can covers matters such as ordering the offender to refrain from continuing to abuse, contacting, harassing, or interfering with the abused person or the children, granting the abused person exclusive possession of the home while the TPO is in effect, and ordering temporary support for the abused person and the children.

What happens to the children if a TPO is requested?

The court can award the abused person temporary custody of the minor children and can order the offender to have no contact with the children (if needed for their protection).  The court can also order the offender to make payments for the support of the abused person and the children.  Be prepared to tell the court what you would like to happen with the children and any financial support that you may need while the protective order is in effect.  And be prepared to discuss a possible visitation schedule and whether visitation should be supervised if the court is inclined to allow visitation.

What happens if a Temporary Protective Order is issued?

If a TPO is granted, the court will set a hearing date typically within ten business days.  During such a hearing you will appear before the court and will be required to testify and provide whatever evidence you may have concerning the abuse.  The accused will also be required to appear so that he or she may defend themselves.  Upon hearing the facts the judge may choose to issue a Protective Order for as long as a year or can dismiss the case for a lack of evidence. 

What about “stalking”?

Stalking can be defined by any the following actions:  Constantly following, calling or even e-mailing for the purpose of intimidation or harassment.   Stalking is a crime and can also be the basis for petitioning the court for the same type of protective order granted in a family violence case.

What if someone files a false family violence claim against me?

If you are falsely accused of committing an act of family violence, you should consult with an attorney in order to decide the best way for you to defend yourself against the allegation.  Once you appear in court, if after hearing the evidence the judge finds that you were in fact falsely accused the judge will dismiss the order and, in extreme cases, can even assess costs against the petitioner. 

 

Grandparent Rights

My grandchild has been living with me for three years.  His parents have had little or no contact with him during that time.  However, recently they have decided that they want him to live with them.  Is there anything that I can do to keep custody of my grandson?

because the law favors the right of legal parents to raise their children, grandparents can seek third party custody of their grandchild, however, the burden is high for proving that doing so is in the child’s best interest. (See “Third Party Custody” above).  The grandparents would have to show that:  (1) the child will suffer physical or significant emotional harm if custody were awarded to the parents, and (2)  awarding the grandparents custody would best promote the child’s health, welfare, and well-being.

Do grandparents have the legal standing to seek visitation with their grandchildren?

Georgia law allows grandparents to bring an action to seek visitation rights with their grandchildren or to intervene to seek visitation in any matter which involves custody of the grandchildren, including a divorce, termination of parental rights, or adoption of the child by the child’s blood relative or stepparent.  The court may grant reasonable visitation rights to the grandparents if the court finds by clear and convincing evidence that:  (1) the health or welfare of the children would be harmed unless the visitation was granted, and (2) granting visitation would be in the best interest of the children. 

  

Legitimation/ Paternity 

I am pregnant but the biological father and I are not married.  Can I get child support for my child even though I am not married to the father of my child?

Yes, it is possible to obtain child support through a court order.  You should consider consulting with an attorney regarding the process for filing a child support and paternity action.

My girlfriend is pregnant.  If we put my name on the birth certificate once the child is born, does that make me the legal or legitimate father of our child?

If you are not married to the child’s mother at the time of conception or at the time of the child’s birth, simply putting your name on the birth certificate will not automatically make you the legal or legitimate father of the child.  You should file a Petition for Legitimation action with the court in order to have your rights with regards to the child protected.

How do I get custody and visitation with my child even though I never married the mother, and am not on the birth certificate?

Georgia law allows you to request visitation or custody rights when filing a Petition for Legitimation.  During a legitimation action, the court will determine paternity and whether allowing you to legitimate your relationship with the child (become the child’s legal father) is in the child’s best interest, and can establish child custody, child visitation, child support, as well as establish the child’s name, and from whom the child may inherit.

My girlfriend is pregnant but I don’t think I am the father.  Will DNA testing be useful for determining paternity?

A DNA test is very effective in determining paternity, and it tends to be affordable and fairly easy to do.  The test usually only involves a swab of cheek cells from both you and the child, and the results are available within a short time.

My wife and I are getting a divorce, and I have reason to believe that the child born during our marriage is not my biological child.  Should I agree to pay child support? 

Supporting a child that is not biologically yours is a very personal decision.  A child support obligation, once ordered, can be difficult to change.  If you have any doubt that you are the child’s biological parent, before you agree to pay child support you may want to consider a paternity test to determine as soon as possible whether the child is in fact yours.  In the meantime, you should consult with an attorney to ensure that your rights are protected.  

Legal Separations

What is Legal Separation?

In the simplest terms, a legal separation means that you and your spouse tell the court that you wish to live separately without actually dissolving the marriage.  The court can enter an order outlining each of the parties’ rights and responsibilities regarding such things as custody, care, and support for the children, spousal support, and division of household income and financial obligations during the time of separation.

What is the difference between Divorce and Legal Separation?

Similar to a divorce, a legal separation requires a Judge to enter an Order outlining your and your spouse’s rights and responsibilities regarding such things as custody, visitation, and support for the children, spousal support, and division of household income and financial obligations.  However, a legal separation is only temporary in that it does not dissolve the marriage, where as a divorce will ultimately end the marriage.  Another significant difference is that to file for divorce there must be at least six months residence in the state, whereas there is no six month residency requirement for filing a legal separation.

My spouse and I are unhappy in our marriage but we don’t know if we want to get a divorce.  Would Legal Separation be a good option for us?

Legal Separation is often a suitable alternative to divorce for spouses who are dealing with conflict.  As previously noted a Legal Separation is only short term and does not end the marital bond.  Often times a short separation coupled with counseling and other reconciliation methods will allow an opportunity for spouses to work out their differences without the finality of a divorce.

 

Guardianships and Conservatorships

What is the Difference Between a Guardian and a Conservator?

A “Guardian” is granted authority by the court for the care and physical wellbeing of a minor child or an incapacitated adult (called the “ward”).  A “Conservator” is granted authority by a court to care for the property and income, or financial wellbeing, of a minor child or an incapacitated adult (also called the “ward”).  A Conservator must obtain a bond for the value of the income and property of the Ward. 

The court will require that Guardians and Conservators first undergo a criminal background check.  Guardians must file an annual report on the physical and mental status of the Ward.  Conservators must file an inventory of assets, an asset management plan, and an annual financial accounting for the property and income of the Ward. 

What Court can appoint a Guardian or a Conservator? 

The Probate Court of each county has exclusive jurisdiction over the appointment of Guardians and Conservators. 

How does a Guardianship of A Minor Child work? 

The Probate Court can appoint a Permanent Guardian of a minor child who has no living parent or when the parents fail to properly care for the minor child.  A Temporary Guardian can be appointed to a person having physical custody of a minor child who is in need of a guardian.  The written consent of the legal parent(s) must be given or the legal parent(s) must be given legal notice of the request for the guardianship. 

During the term of the guardianship, the Guardian holds all the powers of the legal parent(s), which include things like enrolling the child in school and consenting to medical care.  The granting of a Temporary Guardianship, however, does not terminate the parental rights, and the legal parent(s) can later petition the court to terminate the guardianship.

I have been the Guardian of my niece for the past three years.  The mother now wants to end the guardianship, but I believe the mother is still not able to care for the child and that this would harm the child.  Can the mother just terminate the guardianship?

In order to terminate the guardianship of a minor, the legal parent would need to file a to terminate with the probate court and provide you with written legal notice.  As the Temporary Guardian, you would have ten days from the receipt of the written notice to file an Objection to the termination of the guardianship.  The case would then be transferred to the Juvenile Court for a hearing and a Guardian ad Litem would be appointed.  Obtaining the assistance of an attorney is highly recommended, as the burden for maintaining the guardianship under these circumstances is high.  Essentially you would have to prove that terminating the guardianship would result in physical or significant emotional harm to the child and that maintaining the guardianship would be in the best interest of the child.

My Father may meet the definition of an Incapacitated Person.  What Should I do to get a Guardian or a Conservator appointed?

The standard for proving incapacity of an adult is high.  A Guardianship of an Incapacitated Adult may be appointed when a physical or mental illness is present to such extent that the person is no longer able to make responsible and rational decisions concerning their care or safety.  A Conservator of an Incapacitated Adult may be appointed when a person lacks the capacity to make responsible and rational decisions concerning the management of his or her property and finances.  In order to ask the court to have a guardian appointed you should call an attorney to discuss your particular situation because Guardianship and Conservator procedures are complicated to undertake without the guidance of an experienced attorney. 

Will an Attorney or Guardian ad Litem Be Appointed For My Father if I am Trying to Prove Him to be Incapacitated?

Since the granting of a Guardianship or Conservator takes away some of the Ward’s civil rights, an attorney will be appointed to represent the proposed Ward and a Guardian ad Litem will also likely be appointed to investigate the facts and make a recommendation to the Court as to the best interests of the Ward.

Who is Likely to be Appointed Guardian of an Incapacitated Adult? 

If the ward is an adult, the following persons have priority in the following order:  the person designated by the ward prior to his or her incapacity in a properly executed designation of guardian, the ward’s spouse, next of kin, or a non-relative.  If more than one person of the same priority wishes to be guardian, the court chooses the one who is best qualified to serve as the guardian based on a variety of reasons such their personal  and professional experience, relationship with the ward, and overall ability to handle the affairs of the ward. 

 

 Disclaimer: 

The answers provided on the Frequently Asked Questions pages and other published pages on this website are only generalized statements believed to be accurate at the time the corresponding web pages were published.  Do not rely on or act upon any information found on this website; rather, use the information to help you form and articulate questions for your attorney regarding your particular legal matter.  The information provided on this website DOES NOT constitute an attorney/client relationship.  The members of Georgia Adoption & Family Law Practice offers no legal advice until an engagement contract is executed by Attorney Vernadette R. Broyles and by an approved client of Georgia Adoption & Family Law Practice and an appropriate retainer for legal services is received…  DO NOT send confidential information to the Georgia Adoption & Family Law Practice without expressed consent from Attorney Vernadette R. Broyles.