Determining Custody

Best Interest of the Child

In Georgia, there are several actions in which the custody of a minor child or children may be contested. These actions include: divorce actions, alimony actions, change of custody proceedings, child welfare actions and juvenile court actions. See O.C.G.A. §§ 19-6-14; 19-6-10; 19-9-3(a); 15-11-94;Harper v. Ballensinger, 226 Ga. 828. In all cases in which the custody of a minor child is at issue between the parents, the judge hearing the case will make the determination of custody, not a jury.There is no absolute right between the father or the mother to the custody of a minor child. The judge hearing the case will not favor either parent over the other in making her custody determination.O.C.G.A. § 19-9-3(a)(1)-(2).

In determining the custody of a minor child or children, a judge may consider all of the circumstances of the case at hand. The duty of a judge in a case concerning child custody is to determine solely what is in the best interests of the child and what will best promote the child’s welfare and happiness. Id. In determining the best interest of the child, the judge may consider any relevant factor including, but not limited to the following:

  1. The love, affection, bonding, and emotional ties existing between each parent and the child;
  2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
  3. 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;
  4. Each parent’s knowledge and familiarity of the child and the child’s needs;
  5. 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;
  6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  7. 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;
  8. 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;
  9. The mental and physical health of each parent;
  10. Each parent’s involvement, or lack thereof, in the child’s education, social, and extracurricular activities;
  11. Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  13. Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationships between the child and the other parent, consistent with the best interest of the child;
  15. Any recommendation by court appointed custody evaluator or guardian ad litem;
  16. Any evidence of family violence or sexual, mental or physical child abuse or criminal history or either parent and
  17. Any evidence of substance abuse by either parent.

O.C.G.A. §§ 19-9-3(a)(3)(A)-(Q).

In addition to the factors listed above, a judge may consider the following factors in a proceeding concerning the custody of a child in which the judge has made a finding of family violence:

  1. The judge will consider primarily the safety and well-being of the child and of the parent who is the victim of family violence;
  2. The judge will consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury or assault to another personal
  3. If the parent is absent or relocated because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances will not be deemed as abandonment of the child for the purposes of custody determination; and
  4. The judge will not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time.

O.C.G.A. §§ 19-9-3(a)(4)(A)-(D).

The judge hearing a case concerning the custody of a minor child or children may also order a custody evaluation of the family and a psychological evaluation or an independent medical evaluation in order to aid him or her in the custody determination. A judge may also order that the circumstances of the case be evaluated by a court appointed guardian ad litem.

Additional Resources

GAL

Psychological Evaluation

Child’s Election

Parental Employment

Alcohol

Smoking

Discipline