CUSTODY

WHAT is child custody?

• Describes the legal relationship between a parent/guardian and a child in that person’s care
  • The mother of a child born out of wedlock has all right to care custody control (O.C.G.A. § 19-7-25 (2010))
  • If a child is born during the marriage, then the parents have equal rights to custody.
  • Biological fathers can file for legitimation and ask for custody rights.
• Abusers may use child custody as a tool to intimidate victims
• Physical Custody: who the child lives with
  • Sole physical custody: the child lives with one parent more than half the time. The child will have visitation with the other parent
  • Joint physical custody: the child lives half the time with each parent
• Legal Custody: who makes decisions concerning the child’s education, health care, extracurricular activities, religious training, and more
  • Sole legal custody: one parent makes these decisions
  • Joint legal custody: both parents make these decisions

HOW do I file for custody?

1. Initial custody decisions are decided by Georgia courts in other kinds of cases like: divorce, separate maintenance action, legitimation, paternity, or family violence protective orders.
   • If you are divorcing, child custody will be included in the divorce papers.
   • If you are filing for a family violence protective order, temporary custody can be determined in that case.
   • If you want to change a custody order from a previous case, you need to file a change of custody petition.
   • See sample pleadings at www.fultoncourt.org.
2. Notify the other parent (or both parents if you are not a parent of the child) of the lawsuit.
3. Develop a proposed parenting plan.
   • The purpose of a parenting plan is to help parents think through and discuss issues of custody and visitation. If the parents agree on the plan, they can file a joint plan. If they disagree, each parent must submit a separate plan.
   • When making a decision on visitation, the judge will consider any history of domestic violence (O.C.G.A. § 19-9-7 (2010))
   • Here is a sample parenting plan: www.fultoncourt.org
4. The court may order mediation. Family violence survivors can request specially trained family violence mediators.
5. Go to court and present your case- Consider hiring an attorney, if possible.
6. The court will enter a custody order.

HOW does the judge decide who will get custody?

• Generally between parents the judge will look at the best interests of the child. The judge will look at...
  • Each parent’s bond with the child
  • Whether the environment is stable and satisfactory
  • Acts of the parent who committed violence
  • Each parent’s mental and physical health
  • Each parent’s history of family violence, child abuse, substance abuse, or criminal history
  • Each parent’s ability to meet the child’s educational needs
  • Each parent’s ability to provide the child with food, clothing, and medical care
  • Each parent's involvement in the child's educational, social and extracurricular activities
  • Each parent’s work schedules

See Georgia Legal Services’ video on custody.

See this link for information on how to talk to your kids about custody.
For general information about child custody in Georgia, listen to Georgia Legal Services Program’s podcast.
Look at your county's court website for specific forms.
For more information on child custody in Georgia, see this Georgia Legal Aid Brochure and the Georgia Legal Aid website.

VISITATION

WHAT is visitation?

• A schedule that says when a parent can spend time with his/her child.
• The court decides this as part of a custody case.
• When making a decision, the judge will consider any history of domestic violence (O.C.G.A. § 19-9-7 (2010))

WHO can ask for visitation?

• Parents
• Grandparents
• Siblings

WHAT types of visitation are there?

• Supervised visitation: the court orders that someone else is present during the visit between parent and child. This is because the child might be in danger if left alone. The supervisor could be a staff member of a local agency, a friend, or a family member.
• Unsupervised visitation: the parent can visit the child alone without another adult supervising.

HOW do I file for visitation?

• Ask the court
• File a petition for visitation.

See Georgia Legal Services’ video on visitation. 

For county-specific forms, instructions, and information about visitation, see childsupport.georgia.gov.
For more information on visitation, see georgialegalaid.org.

PATERNITY & LEGITIMATION

WHAT is paternity?

• Paternity is a legal word for fatherhood
• A child’s legal father has a right to custody and/or visitation with the child
• A child’s legal father also has a responsibility to pay child support

WHAT is legitimation?

• In order to have parental rights, a man must legitimate his child
• The process that fathers who are not married to the mother use to establish parental rights to their children out of wedlock
  • If a child is born out of wedlock...
    • The child’s parents....
      • Were not married when the child was conceived
      • Were not married when the child was born
      • Have not married since the child was born
• Examples of actions that are not legitimation:
  • Being named the father in a paternity test
  • Paying child support
  • Naming the child in your will
  • Signing the child’s birth certificate
  • Enrolling the child in school
• A child is considered legitimate if....
  • The child was born when the parents were married
  • The child was conceived during the parents’ marriage and they divorced before the child is born
  • The parents married after the child was born

HOW do I legitimate a child?

1. File a Petition for Legitimation
   • The petition can be filed in the Superior Court in the county where the mother lives. If she lives out of state, the petition can be filed where the father lives.
   • See www.southernjudicialcircuit.com’s self-help guide to paternity and legitimation. See page 4 for a Petition for Legitimation.
2. If your petition is granted, you can ask the court for custody and visitation
   • The court will only legitimate the child if the court believes it is in the child’s best interest
   • Even if the petition is not granted, you may still be responsible for financial support

WHAT rights and responsibilities does a mother have in legitimation?

• To be formally notified of a petition filed by the father
• The right to object to legitimation
• The right to attend the court hearing

For frequently asked questions, see Paternity Establishment FAQ.
For more information on paternity, see georgialegalaid.com.

DIVORCE

FORMS:

This set of forms can be used in all courts across Georgia by self-represented persons who want to file for divorce.  Click here for forms, checklists and instructional videos.

WHAT is divorce?

• The legal ending of a marriage by a court
  • Marriage: legally enforceable contract between two people promising to be spouses.
    • Marriage is more than just living together

WHY do couples get divorced?

• No-fault divorce:
  • the marriage contract is irretrievably broken there is no hope of reconciliation
• Fault divorce:
  • Spouses can request that a divorce be granted based on some fault of the other spouse.
  • Some reasons for a fault divorce are as follows:
    • Cheating by either of the parties
    • One party leaving the other
    • The sentence of either party to 2+ years of prison for an offense involving moral turpitude (murder, involuntary manslaughter, rape, embezzlement)
    • Drunkenness
    • Cruel treatment
    • Incurable mental illness
    • Drug addiction

HOW do I file for divorce?

1. File the Complaint for Divorce
   • File in superior court of the county where the other spouse lives.
   • A person must have lived in Georgia for at least six months before filing for divorce in the state.
   • If the other spouse has moved to another county within 6 months of the date you are filing, you may file in the county where you both lived.
   • If the other spouse has moved out of state, you can file in your county.
2. Service of Process
   • You must have a copy of the Complaint for Divorce served on your spouse.
   • The sheriff will give the divorce papers to your spouse.
     • This is called "service of process.”
   • There is also a fee to have the Complaint served.
3. Hearing or Trial:
   • After your Complaint for Divorce is served on your spouse, the spouse may file an answer.
   • If your spouse does not file an answer, your divorce is considered to be "uncontested".
   • The court will schedule a hearing to make a final decision.

WHAT should I do if my spouse is abusive?

• Tell your lawyer or the court if there is family violence in your home!
• You can ask the court to order the abuser to stay away from you.
• The judge can issue special orders to keep you and your children safe.

WHAT are some divorce support provisions?

• Alimony
• Child custody
• Child support
• Visitation

WHAT happens to my property when I get divorced?

• Couples have to decide who gets furniture and other household items
• Some couples will use lawyers
  • To save money, you can do this yourselves
• Here are some tips on how to divide household items in a divorce!

For more information on divorce and how to file for divorce, see georgialegalaid.org or the Georgia Judicial Portal: Georgia Divorce Videos and Forms.