~Compassionate Justice
for Children & Families ~
FAQ’s

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 to 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.