While most are aware that custody and visitation are not synonymous, many parents begin legal proceedings without realizing that custody is broken into two halves by the Court: legal custody and physical custody. Legal custody refers to the ability to make decisions regarding the child’s upbringing and development, meaning a parent who obtains legal custody will have a say in matters such as their child’s education, hobbies, and religion. Physical custody, as the name suggests, refers to the actual guardianship of the child and will often be awarded to one parent, usually referred to as the “primary physical custodian,” while the secondary physical custodian will receive visitation.
It is our goal to help all parties involved in a custody and visitation dispute understand the various intricacies of the pertaining portions of family law. Family law attorney Caryn Fennell will help you complete all necessary documentation in order to expedite the court process and will ensure you know exactly what to expect—and what is expected of you—throughout the custody and visitation case.
When the issue of custody and visitation is brought before a Georgia court, the presiding judge must adhere to a number of policies when making a ruling. These include, but are not limited to, the following:
Considerations of the Court
No gender preference
In Georgia, the Court is prohibited from basing any custody and visitation decision on the gender of either party, meaning preference is not given to the child’s mother or father simply because they are the child’s mother or father. Ultimately, the judge will base their ruling on what they feel is best for the child, so it is essential to secure an attorney who can adequately convey your connection to the child and ability as a parent.
Frequent and continuing contact
It is the aim of the Court, and the Law Firm of Caryn S. Fennell, to ensure a custody and visitation case leaves the child in question with frequent and continuing contact with both parents. Under extreme circumstances, a parent may be granted both sole legal and physical custody of their child, but, for the most part, the presiding judge will work to grant both parents some degree of access to the child. When frequent and continuing contact is established, a child is more likely to adjust to the separation of his or her parents without risk of developing feelings of loneliness or abandonment.
While any judge presiding over a custody and visitation case will strive to arrive at the ruling which is most beneficial to the child, they must relinquish their decision-making power when the child in question reaches 16 years of age. At this juncture, the child is permitted to decide for themselves which parent they wish to live with for the remaining years of their childhood. Similarly, when a child turns 11, the judge assigned to their case is encouraged to give their desires careful consideration before making a ruling, though is under no obligation to rule in favor of the child’s preferred guardian.
What to Expect
What happens in an emergency custody hearing?
Georgia courts will typically only modify custody if a significant change to the family’s situation has occurred. If the child’s safety is in danger, the court will allow an emergency custody hearing. The judge will hear the evidence regarding the allegations. The judge may decide to modify custody or appoint a psychologist or guardian ad litem to investigate further.
What is an evidentiary hearing in a child custody case?
An evidentiary hearing in a child custody case is when a judge makes a final decision regarding an aspect of the case, such as which parent will have custody of the children. During an evidentiary hearing, each side can present evidence and call witnesses. After reviewing the evidence, the judge will make a decision. This may happen immediately or the judge may elect to take some time to reach a decision.
How hard is it to get full custody as a mother/father?
Full custody is also referred to as sole custody. Sole custody means that one parent has physical and legal custody of the child. Courts generally presume that contact with both parents is in a child’s best interest, so to get sole custody, a parent needs to prove that contact with the other parent will harm the child. This may include situations where there is abuse, drug use, or severe mental health issues. Fathers not married to their former partner will need to establish paternity, which in Georgia means openly acknowledging the child as theirs.
How does the judge decide who gets custody?
A judge decides who gets custody based on the best interests of the child. The judge bears in mind the child’s comfort, safety, and health.
Factors that may impact a judge’s custody decision include:
- The relationship between each parent and child
- The stability of the child’s current home
- The health of each parent
- Evidence of abuse or violence
- A parent’s criminal history
- The ability of each parent to provide for the child, including their physical, mental, emotional, and educational needs
- How involved each parent is in their child’s activities
A judge may award sole or joint custody. With joint custody, the parents work together to make decisions on their child’s behalf.
A judge will also decide based on the wishes of the child. Once a child reaches age 14, the child can decide which parent she would like to live with, and the judge will honor that request as long as living with that parent is in the child’s best interest. Custody can be changed every two years after that.
What to expect at a custody hearing?
Custody hearings are relatively small. The parties present will typically be the parents, their lawyers, and any witnesses each parent is having speak on their behalf. The children may also be present if they are requesting to live with a specific parent.
Each parent will testify. They will be asked direct questions on the judge. These questions are used to help determine what will be in the best interest of the child. The judge may ask about details of the parenting plan, details about the potential living arrangements of the child, or other pertinent questions.
Custody hearings may be short, as several are scheduled each day. After hearing all the testimony and reviewing the evidence, the judge may issue an immediate decision. The judge may also need time to make a decision.
Once the judge has made a decision regarding custody, the order can be changed once every two years unless there is a significant change in circumstances.
General definition and overview of what visitation rights are
Visitation rights refer to the rights of a non-custodial parent to spend time with his or her children. Courts will typically order either reasonable visitation or a fixed visitation schedule.
If the parents are communicative and cooperative, reasonable visitation may work well. This means that the parents work together to create a schedule that works for everyone.
If the parents aren’t able to come to an agreement, the court may order a fixed visitation schedule. A fixed visitation schedule spells out the specific days and times that the non-custodial parent sees his or her child. This is typically weekly or bi-weekly. The court may also address which holidays the child spends with which parent.
If there is concern that a parent may harm or endanger the child, visitation may be supervised. In this case, an adult must be with the non-custodial parent at all times when he or she is with the child. The court must approve the person doing the supervision.
Can a child refuse to go to visitation?
If a child is refusing visitation and is age 14 or older, the court can take the child’s desires into account when making visitation decisions. This is to help make certain that custodial parent isn’t trying to turn the child against the other parent. The child should be encouraged to visit, but if that’s becoming problematic, you may want to revisit visitation. A parent can ask for changes to visitation once during each two-year period between custody reviews without having to prove a significant change in circumstances.
Can grandparents have visitation rights?
Grandparents have the right to request visitation with their grandchildren. They can either file a petition of their own or join a custody, divorce, or visitation case already in progress. As with parental visitation and custody, grandparents must show that visiting with their grandchildren is in the children’s best interests and that the children would be harmed by not seeing their grandparents.
“Harm” to the grandchildren may occur if they don’t have visitation with their grandparents if:
- The children have lived with the grandparents for more than half the year
- The grandparents supported the children financially for one year or more
- There has been a history of regular visits between the grandparents and grandchildren
Grandparent visitation is for at least 24 hours per month. Visitation can be amended every two years.
What is a reasonable visitation schedule?
A reasonable visitation schedule means a schedule that works for both parents and the children’s schedule. For a reasonable visitation schedule to work, both parents need to be willing to work together. The non-custodial parent may see his or her children on certain days, every other weekend, or on a different schedule that works for everyone involved.
Can visitation be denied to a non-custodial parent?
Visitation can be denied to a non-custodial parent if the court believes that visitation would harm or endanger the child. The court may also order supervised visitation so the non-custodial parent is never alone with the child.
How to stop visitation rights
If you want to stop visitation rights with the non-custodial parent, you can ask for a modification. You can ask for one modification without showing a significant change in circumstances once every two-year period following the custody order. You can ask for a modification any time there is a significant change in circumstances. If you refuse to follow your visitation order, the non-custodial parent can file for contempt, so it’s important to request a modification.
A final word
Custody and visitation is a complicated issue and those embarking on a court battle relating to such matters should seek the help of a respected law firm if they wish to obtain a certain result. The Law Firm of Caryn S. Fennell boasts years of experience in family law and has worked extensively on custody and visitation cases. We vow to keep the welfare of the child at the heart of every decision we make and will guide each client toward a ruling that is beneficial for them and their family. Call our law firm today at (770) 479-0248 for a free consultation.