Georgia law provides that the court must decide the child custody and parenting time arrangement that will best promote a child’s welfare and happiness.
Georgia law states that a close parent-child relationship for both parents and continuity in the child’s life are in the child’s best interest. Ideally, you and your spouse should consider the age and temperament of the child and the parents’ work schedules when creating a schedule that works best for your family.
Like legal custody, primary physical custody can be awarded to one parent or designated as joint. If you and your spouse are unable to work out a parenting time schedule, the court will do it for you.
Most parents want significant access to, or custody of, their child and most couples do share physical custody of their children. Parents often refer to this shared custody arrangement as joint custody. However, the legal term “joint custody,” describes only those situations where parents have almost exactly equal parenting time (physical custody) with a child. Joint custody is possible in some, but not all, situations and must be in the child’s best interest. In many situations an 50/50 split of parenting time is either not feasible (families where one parent travels extensively for work) or it may not be in the best interest of the children (such as in families with very young children) so joint physical custody is not appropriate. In these situations, one parent will have physical custody of a child more than 50% of the time and, therefore, would be said to have “primary” physical custody of that child.
If you and your spouse cannot agree on this designation you can ask a court to decide for you. When determining whether one parent should be designated as the primary physical custodian, the court considers how much time a child will spend with each parent and which parent wakes the child up for school, helps him/her get ready, provides meals, does bath time, takes the child to doctor’s appointments, is at parent teacher events, etc. The court can factor into its decision any information presented by the parties if the court finds that information to be relevant to the issues of child custody and parenting. Georgia law also provides a list of factors that the court can consider. These factors include, but are not limited to:
The physical and legal custodial designations and the actual day to day schedule for time with each parent are incorporated into a Parenting Plan which is required in any Georgia divorce with minor children. Parenting plans have mandatory language and conditions and generally share the same format. In Georgia, almost every parenting plan contains the following language:
“If the parties cannot otherwise agree during the term of this parenting plan, the non-custodial parent, or in joint custodial arrangements, the mother or father shall have at a minimum the following parenting time….”
It is important to remember when you are negotiating the terms of your parenting plan that even after you have hammered out the details, signed the agreement, and it has been filed with the court, you and your spouse can still agree to parent and share time with your children as you see fit. You are still parents and can decide what is best for your children regardless of what you agreed to in the parenting plan.
The best parenting plans are often signed and then put away in a drawer. Ideally the parents are able to manage day to day without constantly referring to the parenting schedule and rules. It might sound like a fantasy, but it is an achievable goal. The parenting plan can serve as the baseline agreement that either spouse can point to if the other spouse is not carrying their weight or consistently asks for last minute changes.
Parenting plans are required to state when a child will be in each parent’s physical care by designating where the child will spend each day of the year. The plan can, and usually does, include how holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent. When necessary, transportation arrangements, how the child will be exchanged between the parents, the location of the exchange, and who will pay for any transportation costs can also be specified.
A good parenting plan creates consistency and is based on the circumstances at the time of the divorce. However, no parenting plan can anticipate every future event. Parenting plans are modifiable for that very reason – if circumstances change materially then you can agree to modify the plan or go back to the court and ask for the plan to be modified by a judge.
There is no legislatively mandated parenting schedule in the state of Georgia. When you hear the phrase “standard schedule” it refers to the 70/30 schedule presumed under the child support calculator which has historically been parenting time from 6 p.m. Friday to 6 p.m. Sunday every other weekend for the non-custodial parent.
Since there is no standard custodial schedule, parents may look at work schedules, stability, ability to provide, and at a certain age, the child’s preference may also be considered. As more dual income families share parenting responsibilities while juggling work schedules, a 60/40 or 50/50 parenting time split is becoming more common.
Current studies indicate that the amount of conflict between parents seems to be more closely linked to a child’s stress, anxiety, and unhappiness than how many nights per week that child spends with each parent. It just comes down to what works best for your child. We have included some sample parenting time provisions in Child Custody Common Compromises which is included with the Parenting Plan. Seeing examples of what other families have agreed to may help you determine what is right for your child.
Ultimately coming up with a workable parenting plan is often a better goal than coming up with a perfect parenting plan. A workable parenting plan puts the best interests of your children at the forefront, but also allows for accommodation of the needs or constraints of one or both parents. A plan that is clear and specific works best. Too much flexibility can cause uncertainty and lead to time spent in court when the parties disagree. If you take the time now to lay out the ground rules it will provide clarity for parents and children, but still allow for cooperation between the parents if they are capable of it.
There are many wonderful therapists, social workers, and child specialists who help couples determine what parenting time schedule will be best for their children. Frequently, spouses will work out a parenting time schedule together with a therapist and then incorporate that schedule into the parenting plan document filed with the court.
Georgia code section 19-9-1 is reprinted in its entirety below. As you will see, the law is focused on the best interests of the child or children and intent on preserving the parent-child relationship.
O.C.G.A. 19-9-1 Parenting plans; requirements for plan
(a) Except when a parent seeks emergency relief for family violence pursuant to Code Section 19-13-3 or 19-13-4, in all cases in which the custody of any child is at issue between the parents, each parent shall prepare a parenting plan or the parties may jointly submit a parenting plan. It shall be in the court’s discretion as to when a party shall be required to submit a parenting plan to the court. A parenting plan shall be required for permanent custody and modification actions and in the court’s discretion may be required for temporary hearings. The final order in any legal action involving the custody of a child, including modification actions, shall incorporate a permanent parenting plan as further set forth in this Code section; provided, however, that unless otherwise ordered by the court, a separate court order exclusively devoted to a parenting plan shall not be required.
(b) (1) Unless otherwise ordered by the court, a parenting plan shall include the following:
(A) A recognition that a close and continuing parent-child relationship and continuity in the child’s life will be in the child’s best interest;
(B) A recognition that the child’s needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;
(C) A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and
(D) That both parents will have access to all of the child’s records and information, including, but not limited to, education, health, health insurance, extracurricular activities, and religious communications.
(2) Unless otherwise ordered by the court, or agreed upon by the parties, a parenting plan shall include, but not be limited to:
(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;
(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;
(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;
(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;
(E) An allocation of decision-making authority to one or both of the parents with regard to the child’s education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution;
(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent’s right to access education, health, extracurricular activity, and religious information regarding the child; and
(G) If a military parent is a party in the case:
(i) How to manage the child’s transition into temporary physical custody to a nondeploying parent if a military parent is deployed;
(ii) The manner in which the child will maintain continuing contact with a deployed parent;
(iii) How a deployed parent’s parenting time may be delegated to his or her extended family;
(iv) How the parenting plan will be resumed once the deployed parent returns from deployment; and
(v) How divisions (i) through (iv) of this subparagraph serve the best interest of the child.
(c) If the parties cannot reach agreement on a permanent parenting plan, each party shall file and serve a proposed parenting plan on or before the date set by the court. Failure to comply with filing a parenting plan may result in the court adopting the plan of the opposing party if the judge finds such plan to be in the best interests of the child.
In situations where parents have joint custody and earn roughly the same amount of income the amount of child support can be reduced through the use of a parenting time deviation in the child support worksheet. This deviation must be shown to be in the best interests of the children and be accepted by the court.
However, even with 50/50 parenting time, if a significant disparity in income between parents exists, then the parent with the higher income is selected as the “non-custodial” parent in the child support worksheet and the calculator will determine the amount of child support to be paid based on the parties’ incomes. For many cases, the parenting time deviation can be used to adjust the amount of child support to an amount that is appropriate under the circumstances.
A court can award one parent sole custody of a child, but sole custody is generally only awarded in situations involving drug abuse, severe alcohol abuse, physical or sexual abuse or other situations of extreme conduct by one parent that would harm the child. The parent with sole custody has permanent custody of the child, but the non-custodial parent may still have visitation time with that child. If a parent is awarded sole custody of a child that parent will have not only physical custody but sole legal custody, too.
Georgia law favors children spending time with both parents in order to foster the parent/child relationship. However, under Georgia law a child who is at least 14 years old can sign an election to live solely with one parent. The law presumes that the child’s choice is in his or her best interest unless evidence is presented that convinces the court that living with the chosen parent is not in the child’s best interest. A judge is not required to follow the child’s election and many judges dislike elections by children because they are often done under pressure from one parent. However, the reality is that it is difficult to overcome a child’s election.
We’ve got you covered. Visit A Modern Divorce by Taylor & Weber LLC for options to help you mediate issues, draft a parenting plan or settlement agreement, file your documents with the court, or simply provide legal advice.