In all cases in which the custody of any minor child is at issue between the parties, there will be no prima-facie right to the custody of the child in the father or mother.
Finder of Fact
The determination of custody is a matter for the Judge to decide even in a jury trial such Subject Matter is not to be decided by a jury. The Judge will look to determine what is in the Best Interest of the Child when making a determination of custody.
Best Interest of the Child
In determining what is in the best interest of the child the Judge may look to any relevant factor including, but not limited to the factors enumerated in O.C.G.A. section 19-9-3(a)(3):
(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and step-siblings and the residence of such other children;
(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
(D) Each parent's knowledge and familiarity of the child and the child's needs;
(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors
(G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
(I) The mental and physical health of each parent, except to the extent as provided in Code Section 30-4-5 and paragraph (3) of subsection (a) of Code Section 19-9-3 and such factors as provided in Code Section 15-11-26;
(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;
(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.
Election of a child
When the child reaches the age of 11, the Judge will consider the wishes of the child along with other factors including the educational needs of the child. The Judge has complete discretion in making this custody determination and the wishes of the child will not control, at this age.
When the child reaches the age of 14 years of age, the child will have the right to select the parent that they wish to primarily reside with. The child's selection of which parent to live with will be presumptive unless the Court determines it is not in the best interest of the child.
While a child 15 years old has the right to select which parent it wishes to live with, the trial court Judge must determine what is in the best interest, welfare, and happiness of the child and in making this determination the Judge has wide latitude and discretion. Pritchett v. Pritchett, 219 GA 635, 135 S.E.2d 417 (1964).
Modification of Child Custody
Generally, a Petition to modify child custody must be brought in the county where the respondent resides.
In a modification action the petitioner bares the burden of showing: the required substantial change in circumstances materially affecting the welfare and interest of the child. So, the plaintiff must show:
- There has been a change of condition;
- The change of condition substantially affects the interest and welfare of the child, and the change must be material; and
- The condition complained of must be shown with new evidence that has occurred since the prior award that the new action seeks to modify.