Arguably the most difficult aspect of any divorce proceeding is determining child custody. It’s hard for parents to step aside from the anger and pain they may be feeling, but it’s vital to do what’s right for the children. Sometimes this means that one parent has primary physical custody and the other has visitation. Sometimes it means shared custody. Oftentimes circumstances change after the initial custody determination and the issue of custody needs to be revisited.
The need for modification of custody agreements or custody arrangements in Georgia arises when one of the parent’s status changes and they’re no longer able to provide adequate care, or they become better able to provide adequate care than at the time of the original agreement or Order. In an ideal world, both parents would simply agree to new terms and move forward. Unfortunately, that doesn’t always happen. Learn about modification of custody in Georgia and the ways in which an Atlanta family law attorney can help protect your parental rights.
The first thing to understand regarding child custody is that it’s never cut and dry. The issue of determining who gets custody of the child depends on a wide range of factors, with all of them coming down to the courts deciding what is in the best interest of the child. It is best for all involved if the two parents can agree on issues of custody, and the courts will generally approve an amicable and reasonable agreement between the parents.
For those who cannot come to an easy agreement, mediation often yields good results. This process involves a neutral mediator who sits down and helps the parties, often with the assistance of their attorneys, come to a decision without confrontation or adversarial proceedings.
When legal proceedings are necessary, the courts will look at a range of factors. Was the couple married? If not, were both people the legal parents of the child? If they both were the legal parents, the proceedings usually move forward as though they were married. If not, the legal parent usually will be granted primary custody.
Did one parent move out and leave the kids behind? If so, this can hurt chances to get custody, but it’s not insurmountable, especially if the relocation was due to acts of domestic violence by the other parent. Does one parent have a history of abuse? Also importantly, is one parent better able to financially provide a secure, safe and nurturing environment for the child?
Other factors that are considered in awarding custody in Georgia include:
Child custody laws in Georgia are outlined in the State Code Title 19, section 19-9-3.
Generally gone are the days when the courts would automatically side with the mother. Still, it’s a good idea for fathers seeking custody to have experienced legal representation to ensure that they get fair treatment. Custody doesn’t always go to a single parent, either. Very often, courts will award joint physical or legal custody, or both.
Gay and lesbian parents cannot be discriminated against on the basis of sexual orientation in regard to custody. Still, it’s a good idea for an LGBTQIA+ parent to seek legal representation to protect your rights. While discrimination is illegal, it does, unfortunately, still happen.
Sometimes the courts make a decision that months or even years later may no longer be valid. Perhaps one parent falls upon extreme difficulty and is no longer able to properly care for their child, whether due to financial hardship, development of an addiction or any other reason. Sometimes one parent who was deemed unfit gets their life together and now is able to provide a great life for their child.
In these cases, it’s possible to modify the original custody order. Parents can request modification of custody every two years after the initial judgment and custody award. These modifications are only permitted when a significant change in the parent’s circumstances has occurred that affects the child’s best interests.
There are a number of circumstances that can allow a parent to request a modification of the original custody order outside of the two year timeline. If the parent with primary custody plans to move to a new location, which would leave the remaining parent unable to easily see their child, a modification request is allowed.
If a child over the age of 11 specifically requests to change their custodial parent, a modification hearing can be held. If the child is over the age of 14, the courts will more strongly consider their request. If a parent in a military family is being deployed, the courts may enact provisions that are designed specifically to ensure that the parent can contact their child throughout their deployment, as well as before and after.
When both parents agree that a change in custody is in the child’s best interest, this constitutes an uncontested custody change. In such a case, one or both parents show that substantial changes allow for the change to be made, and the parents both agree regarding the new terms. The courts then must approve the modification, which normally happens unless the courts believe that the change represents a risk to the child.
If the parents don’t agree, the parent seeking a change of custody must initiate legal action to sue for the modification. In order to begin this process, the suing parent must bring a complaint for a change of custody in the county that currently has jurisdiction over the legal custodian of the child, if the suing parent isn’t the legal custodian. If the parent is the legal custodian, they must bring suit in the jurisdiction where the non-custodial parent lives.
The court, in these cases, has the power to modify the existing agreement based on the evidence presented. It may rule that the existing custody agreement stays in place. Or, it may award sole custody to one parent, or joint custody to both, and may include requirements and restrictions as it sees fit.
The judge can order a psychological evaluation as well as independent medical evaluations, and even an investigation to be performed by the local family and child services agency.
It’s not unreasonable to be frightened at the prospect of losing custody of your child. That being said, the courts generally prefer to do what they can to ensure that children have continuing contact with their parents and their grandparents, so long as those parents and grandparents act in the child’s best interests. The courts also believe in encouraging all parents to share in the process of raising their child after the end of a relationship.
The courts usually only deny visitation or contact in cases of serious abuse or danger to the child’s physical, mental or emotional well-being. Very often, it is in cases where one parent’s life takes a sharp turn for the better or worse that child custody modification occurs.
As with many things, whether you need an attorney depends on your individual case, but having legal counsel in your corner is always a good idea, even in an uncontested modification. Consider a case where you and your ex-spouse agree on a modification of the child custody agreement, but there’s language that you don’t realize harms you in terms of your rights as a partner in raising your child. You might not see this language, but an attorney may well be able to guide you in better wording of the agreement to protect your rights.
In a contested situation where you are suing or being sued for modification of an agreement, you absolutely should have an attorney on your side. Securing a family law attorney does not make you look bad. In fact, it’s the smartest thing you can do to ensure that your rights are protected and you have the best chance at securing the result that’s best for you and your kids.
If you believe that a child custody agreement or order should be legally modified, or if you’re targeted by an ex-spouse seeking to modify an agreement and you disagree, the Atlanta family law attorneys at Edwards Law Group are ready to help. We have decades of combined experience in Georgia family law. We’re a compassionate law firm that knows the difficulty you’re going through and knows how to help. Call us at 770-723-7211 for a consultation about your case today.
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