Legal Custody

In Georgia, legal custody of a child is simply a determination as to which parent will have the authority to make major decisions concerning the child or children involved. Legal custody may either be granted to one parent or may be granted to both parents in a joint legal custody arrangement. If a court does order joint legal custody in a case, the court’s “order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child’s education, health, extracurricular activities, religion, and any other important matter shall be decided.” O.C.G.A. § 19-9-3(a)(8).

Similar to physical custody, the determination of which parent will be a child’s legal custodian may be made by agreement of the parents (memorialized in a parenting plan approved by a judge) or directly by the judge presiding over the case. As with all other matters concerning child custody, a court will make a determination regarding final decision making authority according to Georgia’s best interest of the child standard. See O.C.G.A. §19-9-3.

Physical and legal custody are two distinct concepts. Accordingly, although a court may award primary physical custody to one parent, it can (and usually does) award joint legal custody because it allows both parents to have equal rights and responsibilities for major decisions regarding their children which, in turn, provides both parents the opportunity to remain involved in their child’s life and upbringing. If a court orders parents to share joint legal custody, both parents will “have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training.” O.C.G.A. § 19-9-6 (4)-(5).

As noted above, however, just because joint legal custody is awarded, that does not end the discussion regarding legal custody. Instead, it merely starts the process because the court is required to designate one party as the final decision maker for major decisions concerning the child in the event of joint legal custody. O.C.G.A. § 19-9-3(a)(8). See also O.C.G.A. §§ 19-9-6 (4)-(5) and 19-9-1(b)(2)(E). Notably, a court does not have to award one party final decision making for all decisions, and can (and often does) split final decision making authority between the parents and even places various limitations upon the exercise of final decision making. The four areas of major decision making concerning the child that are to be decided by the court are health, education, extracurricular activities, and religion.

Health and Medical

Making decisions regarding a child’s medical and health care are important decisions a parent must make. Therefore, it is essential for a mechanism to be in place that determines what course to take in the event the parents disagree on this important issue. A parent who has final decision making authority regarding health and medical decisions will be able to determine items such as when and where the child will obtain medical treatment, what medical or surgical procedures the child will undergo, and what medications the child will take. These decisions often include decisions as seemingly minor as whether the child may wear glasses or contacts to major decisions, like whether a child will receive braces. Although it is best for parents to agree on decisions such as these, a court’s order regarding final decision making authority will control in the event of a disagreement.

Education

Decisions concerning a child’s education are also important decisions parents may make for their children. Decisions concerning whether the child will attend public or private school, which course of study a child will engage in or whether the child will be allowed to enroll in advanced classes, held back a grade, etc. are all decisions that would be made by the parent granted final decision making authority in the area of education in the event that the parties cannot come to an agreement themselves.

Extracurricular Activities

Although many do not realize it, one often contentious issue regarding child custody involves the child’s extracurricular activities. Questions regarding whether the child will participate in football, ballet, baseball or tap, and what limits, if any, should be placed on a child’s involvement in extracurricular activities often lead to disagreements between parents. Additionally, scheduling issues and the possibility that an activity sponsored by one parent may infringe on the other parent’s parenting time may also lead to disagreements. Although agreement between the parents regarding their child’s extracurricular activities is ideal, it is important for a determination to be made regarding who will have final decision making authority regarding this issue in the event the parties disagree.

Religion

Final decision-making regarding children and religion can also be an important issue. In fact, if the parents have religious differences, final decision making authority for religion or religious training may be a very contentious issue. As a result, it is better to spend the time having detailed and thorough conversations with the other parent so that clear provisions can be included in your custody agreement. If one parent is awarded final decision making authority regarding the religious upbringing or training of a child, it is important that the other parent not actively interfere with that authority.

Finally, as a side note, even if the decision making authority is not shared equally by both parents, according to Georgia law, both parents are still entitled to access to all of the records and information concerning their child’s education, health, extracurricular activities, religious communications and other matters in nearly all cases. O.C.G.A. §19-9-1 (b)(1)(D).