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Custody of Children

       Divorce is hard.  No matter the circumstances.  When children are involved, it is even more difficult.  If you are contemplating a divorce or a divorce has been filed against you and you have children with your spouse, you may be wondering how custody is determined.  There is no simple answer; each matter is as unique as the people involved, however, there are a few general factors applicable to everyone. 
       In Georgia, our laws state very clearly that, so long as a child was born into a lawful marriage, there is no prima facie right to custody with the mother or the father.  Put simply, the law states that mothers and fathers are on equal footing when it comes to custody determinations. 
       When custody is in dispute, the overall mandate of our legislature in determining which parent receives primary custody of children is "the best interest of the child standard."  That means that courts are instructed to essentially ignore the wants and needs of parents if those wants and needs are in conflict with what is in the child's best interest. 
       So how do court's determine what is in a child's best interest?  The relevant statute in Georgia says that, in determining the best interests of a child, a judge may consider any relevant factor. A list is provided as a go-by, but in essence, anything that is relevant to the child's welfare can be considered. 
      Oftentimes, courts look at whether there is one parent who, historically, has served as the child's primary caregiver during the marriage.  Who gets the child up for school?  Who takes the child to the doctor?  Who prepares meals? Who helps with homework?  In our modern society, it is now becoming more and more common that both parents share equally in these duties, so now what?  Again, there is no black and white answer or formula for custody determination.  In situations where parents shared equally in child rearing duties, courts must dig deeper.  Courts look at things like a parent's work schedule, financial stability, existence or lack of a support system, prior acts of violence (whether involving the child or not), prior convictions, substance abuse, and any special medical or educational needs of the child.  This is not an exhaustive list, and the fact that one parent may come up short on the checklist is not necessarily a determinative factor. 
      For older children, there exists a vehicle called an "Affidavit of Election."  Children as young as eleven years old are able to execute affidavits indicating with which parent he or she wishes to reside.  For children ages eleven through thirteen, a judge is obligated by statute to consider the child's wishes, but the judge has no obligation to honor the child's wishes.  Courts will review an affidavit but also consider other relevant factors as discussed above.  For children aged fourteen and older, the judge is obligated to both consider the child's desires and honor his or her wishes unless the child's wishes and desires are adverse to his or her best interest.  In other words, for children under the age of fourteen years, a judge has no obligation to do anything other than consider the child's wishes.  At fourteen, the judge, if he or she disagrees with the child's spoken desires, must make a specific finding that the child's wishes are adverse to his or her best interest. 
      In sum, in all matters involving custody, regardless of the age of the child, the child's best interest is at the heart of all custody matters.  It is important, if the case is litigated, to be sure that the judge is provided with the information he or she needs to make the correct determination. 
     At the Law Office of Gina Smalley, we have handled several child custody matters and have had measurable success representing mothers, fathers, grandparents, and third parties in litigation. 


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