There are a number of different types of cases where the custody of a child can become an issue

There are a number of different types of cases where the custody of a child can become an issue. In a Divorce in the State of Georgia the custody of all children must be determined before the parties can be granted a divorce. Custody may also be determined as a separate issue between biological parents who are separated, but not divorced, and also those that have never been married.

The custody of a child cannot be given to someone who is not a biological parent unless it is determined, by clear and convincing evidence, that it would be in the child's best interest to live with a relative other than the biological parent. It is no longer necessary that the parent be found to be unfit.

In deciding custody the Judge will sometimes ask for a Guardian Ad Litem to help investigate from the child's perspective and make a recommendation to the Court. The Judge will consider the age and gender of each child, whether there are siblings, the relationships with the parents, and which parent has been the primary caretaker during the marriage. The Judge will also consider which parent, if given custody, will help the child maintain a healthy relationship with the non-custodial parent. The Court almost always awards visitation to the parent not given custody.

The parties may agree on any custody and visitation schedule they wish, and the Judge will usually approve. Georgia also recognizes joint custody, but separates it into two types. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child. Joint physical custody means that physical custody is shared by the parents to assure that the child spends approximately an equal amount of time and has equal contact with each parent. The Judge has the power to split these or award them together.

A child over the age of 14 can choose which parent to live with, and the Judge will consent unless specific findings are made that the parent chosen is unfit. The Court must also consider the wishes of a child between the ages of 11 and 14 as to which parent they wish to live with. However, this is not binding on the Judge, and other factors could override the child's wishes.

Before the divorce is finalized a temporary child custody arrangement is put into place. This can usually be done without the courts intervention if both parties can reach an agreement. The temporary custody arrangements are not necessarily what the final custody arrangement will be. The agreement should be well thought out and comprehensive. It is best to put it on the court record to make it binding.

TYPES OF CHILD CUSTODY

There are 2 basic issues in regards to custody:

Physical or residential custody - Which parent the children will live with.
This parent is referred to as the Residential Custodian. Legal custody - who will make the decisions on behalf of the children concerning health, education, religion and general welfare.

The most common form of custody is

Joint Legal Custody. This is where the children live with one parent (residential custodian) while the other parent has visitation rights. With Joint Legal Custody, both parents make the decisions on behalf of the children concerning health, education, religion and general welfare.

Joint physical custody Often referred to as shared parenting, it is when the child resides with both parents for a significant amount of time. This arrangement does not always work out to be an exact 50/50 split. In order for this type of situation to work, there must be cooperation on both sides. The parents would also have to live in close proximity as not to affect the child's schooling. A few years ago there was a trend towards awarding this type of custody, however recently it has been determined that this may not be in the best interest of the child.

Sole legal custody Is when one parent has the right to make all the legal decisions regarding issues such as health, education, general welfare and religion. This type of custody is not very common anymore.

When the divorce is finalized both physical (residential) and legal custody will be determined.

THE CUSTODY AGREEMENT

The purpose of the custody agreement is to reach an understanding on how to raise and care for the child with both parents sharing in the responsibilities and maintaining involvement in the day to day life of the child. For the custody agreement to work it is essential that you be flexible. Make every attempt to encourage and respect the relationship of your child and the other parent. Don't assume anything and keep an open mind. Easier said than done when in the midst of the turmoil that naturally goes with a divorce. Keep in mind you and your spouse are getting the divorce, you are not divorcing your children. What if you can't come to an agreement on custody? Then be prepared for a custody battle.

THE CUSTODY BATTLE

Unfortunately, a battle is exactly what it will turn into. Before you reach the point of court intervention to decide custody think long and hard. A custody battle puts the child right smack in the middle of your battle. Why are you fighting for custody? Are you fighting FOR custody or fighting so that your ex-spouse DOESN'T HAVE custody? Is it in the best interest of the child? If you've determined that it's the right thing to do for the children to go forward, what can you expect when the court intervenes?

The court will take into consideration the best interest of the child when making the decision.
If the court feels that neither parent is acting in the best interest of the child a guardian ad litem may be appointed to help in making decisions on the behalf of the child.
Depending on the age of the child, their wishes may or may not be taken into consideration. Some states strongly take into consideration the wishes of the child depending on their age, some states do not consider the child's wishes at all, without regard to age.
Traditionally, the judicial system leans towards deciding in favor of the mother in custody cases. However, with more women pursuing full time careers this trend may be changing. It is no longer assumed that the mother is the primary caregiver.
Unless the situation is so obvious that one parent should have custodial rights over the other (such as in drug abuse or physical abuse) a court ordered independent evaluation will probably be ordered. The evaluation is usually done by a court appointed mental health professional such as a psychologist or a social worker. A thorough evaluation can include the following: interviews with all the parties involved (individually and possibly with the parent and child together); psychological testing of both parents and the child; review of school records and or conversations with teachers; review of medical records and developmental history; review of legal records, such as the papers filed regarding the divorce, any possible domestic disputes and any criminal records of either party involved. Be prepared for the evaluation to take at least four to six weeks if not longer. Be prepared for a time consuming and costly battle.

No matter how strongly you believe you would be the better parent and should have custody of the children, be prepared for the court to decide against you. Be ready to accept the courts decision and move forward to work with your ex-spouse to raise your children in a way that is best for them.

NEVER use a custody battle as a chip in negotiating a better financial settlement. Once the battle has begun, everyone will be scarred including the children. So think long and hard about the consequences of your actions and always keep the children's best interest in mind, long and short term.

In contested custody proceedings the court may order an investigation and report concerning custodial arrangements for the child. This is referred to as a "custody evaluation." Although not mandatory, it is sometimes ordered in contested custody cases, although in some situations this task may be essentially assigned to a Guardian ad Litem rather than a custody evaluator .

The cost of a custody evaluation can range from the hundreds to several thousands of dollars, depending on the county and whether the parties are using a Court Services evaluator or a private evaluator, in if so, who.

Custody evaluations usually take about four months to complete, give or take. A good custody evaluation will generally include the following:

at least one both usually two or three interviews with each parent, separately, totaling at least two or three hours for each parent.
at least one but usually two or three interviews of the children without the parents being present, totaling at least two or three hours.
in person or telephone consultation with the children's day care provider, teacher, and any other adults having a close relationship with the children.
for younger children, a observation of interaction between the children and each parent in each parent's separate home.
criminal background check of each parent.
obtaining the mental health records of each parent, including alcohol and drug dependency treatment records.
ordering a psychological evaluation of the parents, ideally in every case, but at least in every case where credible allegations of mental illness are raised.
ordering an alcohol and/or chemical abuse assessment where legitimate issues of alcohol or drug abuse are raised.
records of the children's school performance.
all other information relevant to determining the best interests of the children with respect to custody.

Upon completion of the Custody Evaluator's investigation, the Evaluator completes a report which addresses all of the "best interest" factors with detailed analyses, followed by the Evaluator's custody and parenting time recommendations².

Although the Custody Evaluator's recommendations are not binding, they weigh heavily in the Court's determination of custody. Apart from some minor tweaking, the Court will almost always follow the Custody Evaluator's recommendations as to custody and parenting time. For this reason, most cases which have not settled before this point will reach settlement when the Custody Evaluation report is received. For those who wish to contest a custody evaluator's recommendations, it is advisable to obtain a rebuttal evaluation if feasible, or at least to be prepared to bring plenty of witnesses and exhibits to trial to show the Court what it was that the evaluator failed to consider or to properly analyze.