Georgia Family Law Blog

Modification of Custody or Visitation in a Georgia Divorce

These frequently asked questions explain your options for changing an established custody or visitation agreement.

Under what circumstances can custody and visitation orders be changed within the state where they were obtained?

After a final decree of divorce or other order establishing custody and visitation (such as a paternity decree) is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") may be made without court approval. If one parent later reneges on the agreement, however, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is generally advisable to obtain a court's blessing before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child.

If a parent wants to change an existing court order and the other parent won't agree to the change, he or she must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

What qualifies as a substantial change in circumstances?

Here are some examples:

Geographic move. If a custodial parent makes a significant move, or the move will seriously disrupt the stability of the child's life, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. If no agreement is reached, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.

Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case.

SOURCE: Georgia Divorce Online

Joint or Sole Custody?

For the sake of the children, the goals of divorcing parents should be the same: involvement of both parents in the lives of the children and mitigation of conflict between the parents. These two factors should dominate all others when thinking about custody.

A joint custody solution gives a psychological boost to the parent who would otherwise be the noncustodial parent. But, even in a sole-custody situation, generous time-sharing (combined with open communication between parents) can create an environment where a noncustodial parent is significantly involved in the children's lives.

Is joint custody right for you? That depends a great deal on the ability of you and your spouse to get along. If you are to share decision-making, you must be able to sit down with your former spouse in a noncombative atmosphere and make decisions together. Shared values and parenting styles make this custody style more viable.

Here's what psychologists have found after long-term studies of families in joint custody and sole custody arrangements:

• Joint custody is a viable option only if the parents have an amicable relationship with each other, communicate well, and understand the nuances of their kid's day-to-day routines. Parents in this situation feel more involved in their children's lives than the noncustodial parent in the sole custody arrangement. On the other hand, in a family where one parent says “black” and the other parent says “white,” the children are better off with a sole custody arrangement to reduce the possibility that their parents will fight over every decision that must be made on their behalf.

• For parents not on friendly terms, joint legal custody, that is to say, joint decision-making, means more room for disagreement and continuation of conflict. These parents are more likely to return to court than parents who have one decision-maker (sole custody).

• If you're able to communicate about the kids, are willing to live in close proximity to your ex, and have the time and resources to share “possession and access” (as they say in Texas) or “physical custody” (as it's more commonly called), then it can be a great thing for everyone. But generally, only children who tend to be easy-going by nature can adapt well to this kind of living arrangement. Children who do poorly with constant change, have difficulty adjusting to new situations, and seem to need a great deal of stability and security in their lives don't do well with joint physical custody.

In short, if you can agree to most of the following statements, joint custody could work for your family:

• I will communicate openly with my ex-spouse regarding the children's needs and activities.

• I can be flexible in working with my ex-spouse and put my children's needs first.

• I will never bad-mouth my ex-spouse in front of my children. On the contrary, I will show nothing but respect for my children's other parent.

• I will respect my ex-spouse's right to have his or her own house rules and not undermine them.

Be honest with yourself. If your feelings don't allow you to accept these guidelines, then get some counseling. If that doesn't work, then joint custody is not a good choice for your family.

SOURCE: FamilyEducation.com

Joint Custody and the Best Interest Standard

“In the best interest of the child” or “child’s best interest” is the famous mantra of the family court prevalent in child custody proceedings today, yet its interpretation by the family court or judges is often arbitrary and its meaning is still obscure. Moreover, the law regarding child custody varies from state to state, leaving no uniform legal position regarding what is in the best interest of the child. Some states have a preference and presumption towards joint custody, while others do not. Some states are amending laws to adopt a preference and presumption for joint custody, while others are amending laws to allow joint custody only when the parents agree to it.

Like most states, the standard for child custody determination in California is the overall best interest of the child such that it assures the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents. However, California does not establish a preference or a presumption for or against joint custody or custody to one parent, and therefore leaves the parenting plan decision up to the discretion of the family court or judge. In 1979, California adopted a presumption for joint custody, but later amended the law in 1994 to allow joint custody only when the parents agreed to it. According to the American Bar Association website, other states such as Connecticut, Maine, Michigan, Mississippi, Nevada, Vermont, and Washington also adopted laws in favor of joint custody, but only when the parents agreed to it. Other states, such as the District of Columbia, Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Missouri, Montana, New Hampshire, New Mexico, and Texas, have laws favoring a presumption for joint custody. In a few other states, joint custody is not specifically authorized.

Regardless of each state’s position for or against a presumption or preference in favor of joint custody and whether or not it has been specifically authorized, overall there appears to be a growing trend in favor of joint custody and more and more bills are being introduced to adopt a presumption that joint custody is in the best interest of the child unless certain circumstances apply (such as convincing evidence that a parent is unfit or that it would not be in the best interest of the child to award joint custody).

If you are involved in a child custody dispute, whether it is the initial child custody determination or a child custody modification, you would be wise to consult a family law attorney in your jurisdiction to help you learn about the law and the standard for custody determination in your area and how these laws apply to your specific situation. Further, you will want to learn what factors the court will consider in determining the best interest of the child so that you are fully aware of your child custody rights and responsibilities.

SOURCE: DivorceNet.com

Teacher Conferences Are Important For Divorced Or Divorcing Parents

When parents are going through a divorce or are divorced, usually one parent has little knowledge about what is happening in his or her child’s classroom. What do you know about how well your child or children did in school this year? Will your offspring need to attend summer school, have a tutor, or be ready to “graduate” to the next grade without any problems? Only your child’s teacher has the answer.

Of course, most parents know that parent/teacher conferences are a great way for them to learn about their child’s daily activities in school, whether the child is doing well, or if their child needs help at home. Yet, many divorcing parents don’t communicate with the teacher during this trying time in their lives, or may turn over the responsibility to the other parent.

However, if you are divorcing or divorced, abdicating educational responsibilities is not in the best interest of your child. So, what can you do to avoid conflict with your spouse, yet remain actively involved in your child’s education?

Make sure your child’s teacher is the first one informed if there is a pending or final divorce. Your child spends more time in school than anywhere else, and this situation might have a negative affect on your child. All teachers are willing to have a conference with a parent at the parent’s request. Find out what is happening with your child.

If the parents are cordial to each other, they can attend the parent/teacher conference together. That way, both parents have the same information and can ask the same questions regarding their child’s education. If only one parent attends, the other one is left in the dark. Unfortunately, in most divorce situations, this is exactly what happens.
      
More often than not, sitting together with a teacher is virtually impossible due to the antagonistic and negative vibes radiating from each parent. This makes the teacher uncomfortable, and in this hostile atmosphere, you may not receive all the information you need to know about your child’s academic achievements or areas needing improvement.

To address these issues, ask the teacher to notify both parents about days and times available for in-person or phone conferences. When necessary, schedule individual in-person or phone conference time with the teacher. This will alleviate divorced parents from having to be together, but at the same time will allow equal time with the teacher. The result is that each parent learns the same information about their child.

If only one parent is meeting the teacher in person or having a telephone conference, he or she should take notes. Even if you and your ex aren’t on speaking terms, sending him or her notes about the conference is in the best interest of your child. Both of you need to have the same philosophy and goals regarding your child’s education.

You and your ex still have a child you need to parent together. School is where children learn. If parents aren’t on the same page regarding the child’s educational goals, then the child’s well-being is unnecessarily harmed.

SOURCE: DivorceNet.com in an article by Brian James, C.E.L. and Associates 

Religious Disputes in Child Custody Cases Raise First Amendment Issues for Courts

An article in the New York Times notes that courts around the country are confronting a proliferation of child custody disputes with a religious dimension. Such cases may, for example, involve challenges to a parent's suitability for custody based on the allegations that his or her extreme or unusual religiosity could adversely affect a child's development or may involve requests for the court to direct one of the parents to refrain from behavior due to the potential effect on the child's religious upbringing or on the relationship with a parent with certain religious beliefs.  The article includes a brief discussion of the recent Oregon dispute over whether a custodial father's desire to have his 12 year old son circumcised as a result of the father's conversion to Judaism could create a basis for a change in custody if the child did not want to undergo the procedure.      

Eugene Volokh provides a great treatment of the First Amendment questions posed in this kind of disputes in his article, Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. Rev. 631(2006).

SOURCE FOR POST: First Amendment Law Prof Blog

Parenting Tips for Divorced Parents

The following tips can help divorced parents work better together in matters pertaining to their children:

• Try to make your dealings with your child’s other parent as pleasant as you can — even if he or she doesn’t.
• If your ex knows how to get under your skin and uses this knowledge unfairly, resolve to keep your cool anyway.
• Bring a friend with you when you have to see your ex in person, as the mere presence of another person often calms the mood.
• Don’t hang on to old resentments, especially when your children are present.
• Take time to calm down and remind yourself that the remaining connection to your ex is solely about the welfare of your children.
• Bite your tongue when you are tempted to speak ill of your ex in front of the kids.
• Talk to your ex about how to handle discipline, school projects, health-care matters, extracurricular activities and other situations you both need to have input on.

Source:’ ‘After Divorce, Take Steps to Smooth Parenting Issues‘ by Doreen Nagle, published in The Indianapolis Star.

Source for Post: South Carolina Family Law Blog and Divorce Help Network

Documentation in Child Custody Cases

How important is documentation in child custody cases? It is extremely important.  According to several child custody experts, one of the best means to prepare for and win a child custody trial is to provide solid documentation that can prove one’s parental capabilities and fitness. Typically one needs to prove to the court and convince the judge that he/she can provide the child with the best environment suitable for proper growth and development.

During a child custody case, every minute detail such as parenting skills, daily interactions of the parent with the child, participation in school and medical appointments, availability, past conduct, and more, may be carefully scrutinized by the court before a decision is made. Therefore, one would do well to keep a detailed record of past events and maintain accurate documentation that can support the parent’s involvement and caring nature and also highlight the deficiencies of the spouse towards the child. For example, documentation that demonstrates questionable behavior or judgment of a spouse, such as domestic violence, abuse, drug usage, negligence towards the child, unavailability, frustrating contact, and/or poor parenting skills would be important.

There are many ways to demonstrate through documentation that one is more fit and/or the better parent. Documentation can include accompanying the child in all school activities such as parent-teacher meetings or school functions, level of involvement in the child’s daily activities, helping the child with homework, taking care of the child’s regular health checkups, getting the child involved in family and church activities, and going on vacation and spending quality time with the child. The most important prerequisite is to keep a proper record of all activities and have witnesses in mind who can testify to your parenting skills and your level of participation in your child’s life. Your goal is to leave no question that your continued involvement is in the best interest of the child.

SOURCE: DivorceNet

New Year's Resolutions: 7 Tips for Being a Better...

Since it is the first of the new year, I will join the chorus with some New Year's Resolutions for divorced or separated parents and others. Following these tips should help you behave better, have better discussions and keep the peace.

The holidays can be a tough time for families, whether together or divided. There are many activities, financial obligations and a feeling that everything should be wonderful, but that things might not work out well. When families are together, there can be problems with conflicting events and expectations from both sides of the family. In a post-divorce situation, the stress tends to be magnified. The same conflicts, plus others, can occur. Usually, families operate under a standardized, somewhat arbitrary schedule for time with the children. Many times, the parents encounter difficulties in juggling school activities, parties, shopping, family gatherings, and travel. We are a little past the immediate danger of some of the worst arguments, but it never hurts to plan ahead.

Here is a list of seven tips to help you be a better ex-spouse/parent/grandparent/or significant other. Hint: you can actually use these any time of the year when you are dealing with family issues.

1. Listen and think before speaking. Listen to your child or the ex-spouse or whoever the discussion is with. Pause and think about what you are going to say and what effect it may have. Try not to react in anger, even when justifiably provoked. Listening demonstrates respect, which doesn't hurt when you are negotiating a personal issue. Think carefully about the words you choose. They can make a huge difference. Labeling someone an idiot or stupid or something worse will make it harder to get a concession from them.

2. Pause and take a deep breath to diffuse anger. You don't have to go on autopilot to engage in a discussion. Doing so will likely lead you into an argument where you and the other party simply fall into a pattern of quick, angry reactions to each other. If you pause, the other party may continue speaking and that may not be bad. Sometimes, as we know, people just want to vent, to get something off their chest. Letting the other party speak may go a long way to resolving the problem.

3. Put yourself in the other person's position. This may be hard to do as an argument starts to heat up, but you can do it if you pause, take a deep breath and think before you speak. With only a small amount of effort, you can probably put yourself in the other person's place and try to understand what he or she wants and why. That effort may enable you to figure out a way to resolve the issue without getting into a huge argument. Play the devil's advocate with yourself. Consider how you would feel if the other person requested what you are wanting. Think through what you are saying and what the consequences may be. Think of the damage you can cause by recklessly pursuing an argument. You may technically be right, but that may not be the best position to take. If you insist on following the letter of the law (the exact wording of the order, for example), that may preclude you from getting a break from the other party later on when you want to do something a little outside the rules.

4. Don't take things personally. That's often a tough one. If you're in a "discussion" with your ex, it's natural to take things personally. One way to help avoid that is to plan ahead, anticipate arguments and be prepared for how an angry response may be delivered by your ex. You don't have to stoop to his or her level. While it may be very satisfying in one sense to get angry and engage in a big argument, in the long run it is harmful. Keep in mind the fact that you will probably continue to have some relationship with the other person for the rest of your life. If you take time to anticipate what may be said, you can avoid a quick, angry response.

5. Try out the other person's suggestion. Sometimes the other party is right and sometimes their ideas are as good as yours, although it may be hard to admit it. For example, if the other parent wants to split the cost of a tutor, maybe you should try it out. Don't just defend your power, authority or turf. Give their suggestion a try. Maybe you'll find that it's not such a bad idea. If you try it and it is a bad idea, it will be harder for your ex to defend the next time such an issues arises. If the idea works, great!

6. Put each situation in context. Think about the big picture. It may be better to concede some small stuff to keep the peace or to encourage your ex to be accomodating for you later on something else. Not all issues are equally important. Exchanging weekends, or changing the pick up or return times a little bit, should not be a big battle. Resist the urge to bring in other issues when the discussion could be about just one small issue.

7. Seek common ground. Be able to compromise. It is rare for one person to always be right or solely have the best ideas. Think about what you and the other party have in common. For example, you may disagree about which after-school activities a child should be in, but you may be able to work to an agreement by remembering (and discussing) what goals you both have for the child. If you start from a broader policy or value statement, such as encouraging music education because studies show it can lead to higher IQs, then you can change the focus to finding the best program available under the time and financial limitations that may exist. Starting from, or going to, common ground can help the parties find answers they can both live with.

It is true that it may not be entirely satisfying to be a peacemaker. The adrenaline rush from a fierce argument can be wonderful, especially if you skillfully tear the other person apart with your clever words. In the long run, however, the damage done may cause major problems that seriously outweigh the enjoyment of winning an argument. These are just a few of the actions you can use to help you avoid getting into destructive arguments and help you become a better parent, ex-spouse, etc. ...

SOURCE FOR POST: Divorce and Family Law in Tarrant County Texas Blog

2008 Brings New Child Custody Laws

The New Year will bring several new laws to Georgia including more changes to the state's rules for divorcing parents. The new law streamlines the process for determining child custody because the bill's sponsors said our old laws often trapped kids in traumatic legal battles.

Representative Judy Manning (R) chairs the House Children and Youth Committee. She and other sponsors of the new law said they'd heard from parents of kids stuck in custody fights that never seemed to end.

So, the 2007 legislature passed some changes.

One requires each parent in a custody contest to file a parenting plan with the court. The hope is the judge could then get both parents to sit down and agree on a final plan; so mom and dad won't fight to pile up hours with the kids, just to win custody from a judge who doesn't know their individual lives.

“The idea that you can count the hours that you had with your child was really too tight for the parents. It got to be too personal, and too much of a squabble,” Manning said.

Other parts of the new law:

Judges can award attorney's fees. That's supposed to keep wealthier parents from using constant challenges as a weapon.

Parents can further streamline the process by agreeing to use binding arbitration instead of the courts.

Kids 14 and over can no longer be the sole deciders of which parent's house they'll call home.

“Sometimes it became part of a bidding war, where one parent would promise a car or a computer or a cell phone or whatever,” Manning said.

Two years ago, there was a huge fight over how to divvy up money between so-called first and second families. But, this law - to shorten the pain for all kids - passed both the House and Senate with just one no vote.

The new law also requires courts to keep track of how many custody fights they handle. Up to now, lawmakers and judges haven't been able to get good statistics on how many kids are affected by custody battles.

The video of the broadcast of this report is here.

SOURCE: WXIA (11Alive.com) by Denis O'Hayer

Related Posts:

Reposting of Links to Articles on HB 369

An Analysis of Georgia House Bill 369: Public Policy Statement

An Analysis of Georgia House Bill 369: Appeals

An Analysis of Georgia House Bill 369: Parenting Plans

An Analysis of Georgia House Bill 369: Arbitration in Custody Cases

An Analysis of Georgia House Bill 369: No Presumptions in Favor of Either Parent or Form of Custody

An Analysis of Georgia House Bill 369: Best Interest Standard

An Analysis of Georgia House Bill 369: Additional Custody Factors for Family Violence Cases

An Analysis of Georgia House Bill 369: Fourteen Year Old Election

An Analysis of Georgia House Bill 369: Custodial Preferences of 11 to 14 Year Old Children

An Analysis of Georgia House Bill 369: Custody Evaluators and Guardians ad Litem

An Analysis of Georgia House Bill 369: Findings of Fact and Conclusions of Law

An Analysis of Georgia House Bill 369: Requirements for Relocation and Chages of Addresses of Parents and Children

An Analysis of Georgia House Bill 369: Attorney's Fees

An Analysis of Georgia House Bill 369: Home Studies by DFCS

An Analysis of Georgia House Bill 369: Custody Agreements

An Analysis of Georgia House Bill 369: Extracurricular Activities Included in Joint Legal Custody Decisions

An Analysis of Georgia House Bill 369: Permissible Parenting Time Provisions in Family Violence Cases

An Analysis of Georgia House Bill 369: Effective Date

Cell Phone Voice Messages and Custody Disputes

Should you keep a record of those angry cell phone voice messages from your ex?  The now infamous Alec Baldwin voicemail message to his daughter (in which he berates his daughter) illustrates how advances in technology can help introduce evidence into child custody battles.  In some situations, this evidence can point out character flaws that aren't always obvious to the courts. The following information about copying answering machine recordings and cell phone voice mail messages can come in handy if you are gathering evidence for a custody case.

Voicemail Messages May Influence Court Custody Decisions.
Will You Be Ready?

If you've ever considered recording your phone conversations, you know that it is illegal [in many states; not Georgia; see Georgia's Laws on Taping Phone Calls and In-Person Conversations] unless you get the other person's permission. Ironically, if you are trying to capture angry, hysterical, threatening or scary conversations from someone, this would defeat the purpose, because they most likely would never agree to be recorded! And even if you did make a recording, because it is illegal, it would not be admissible in court!

But, if this type of person leaves a message on your answering machine or on your voicemail, it is understood that they are being recorded. Therefore, it is more likely that this would be allowed in a court situation to support your divorce or custody case. Each situation and jurisdiction is different regarding these matters, so we cannot say that in every case, the voicemails would be allowed in court, but we can say that it is more likely than secretly recording a phone conversation.

If you have cell phone voice messages that you think would help you in court, you probably have been saving them every few days. If you didn't, you know that your service will erase them permanently after 30 days. The problem is that eventually, you have saved so many messages that there is no room for more messages. This frustrates everyone and makes the angry caller suspicious.

So, that leaves us with the question of "how do I get these voicemail messages onto a CD?"

There are four options:

OPTION 1 - VoIP Service + Phone Recording Software. This is where you have your computer call your voicemail and you record the message directly into your computer.

OPTION 2 - Cable Connection + Phone Recording Software. This is where you hook up cables between your phone and your computer and you record the message directly into your computer.

OPTION 3 - Receive Voicemail as Email Attachment. This is where you sign up for a third party service that has a feature that can literally grab your voicemail and send it to you as an mp3 in an email attachment.

OPTION 4 - Voicemail Transfer Service. This is where you hire someone to do it for you.

---

SOURCE FOR POST: Woman's Divorce Blog in an article written by Howard Richman.

Related Posts:

Georgia's Laws on Taping Phone Calls and In-Person Conversations

High-Tech Evidence: A Lawyer's Friend or Foe?

BE CAREFUL WHAT YOU SAY: EMAILS, TEXT MESSAGES, VOICEMAILS AND MORE...

Illegal Electronic Surveillance in Divorce Cases

Tell-All PCs and Phones Transforming Divorce

Creating Co-Parenting Plans that Work

Whatever disadvantages there may be to sitting down with your soon-to-be ex-spouse to work out a parenting plan there is one undeniable truth to keep you at the table: You two are the only people who truly know your children, their needs, the demands of all of your schedules and the relative strengths and weaknesses of each parent. By working together to make a plan that fits both your lives, you avoid a court's cookie-cutter solutions. Hopefully, you also create a new framework for the active participation by each of you in the care and raising of your children. Remember, statistics show that parents who prepare a plan jointly are 80% more likely to comply with it than if a plan is imposed upon them by a third party. An experienced family law attorney can help you create a plan that is right for you and your family.

To make a parenting plan that works, family and divorce experts recommend crafting a plant that is both specific and flexible. You should create a workable system for dividing responsibilities so that the plan can work whether parents get along well or not. You can rotate primary responsibilities or you can agree to delegations when you agree that one parent has an issue covered. Be sure to include terms requiring each parent to treat each other with respect in front of the children or when they can overhear conversations. Determine how future conflicts will be resolved and build in periods of review and adjustment-usually after the first year and then every two or three years thereafter.

Items that should be included in every parenting plan include:

• Visitation/Shared Parenting Schedules
  
  
  • Use a regular calendar and a school calendar to plan for and anticipate school breaks and holidays, summer vacations and weekend start and stops.
  • Define when holidays start and end.
  • Remember to include days like Mother's Day or Father's Day and birthdays.
  • Create a formula for anticipatable events that will work for the first one to two years of the plan's life.
  • Don't forget to include drop-off and pick-up times and locations.
    
• Access for both parents to medical and school records, teachers and activities
  
  
  • Make sure both parents have the right to make emergency medical decisions.
    
• Child support payments and inclusions
  
  
  • Include what is covered and who gets the tax deductions.
  • Designate whether payment will be made directly or through state support divisions.
  • Make sure the paying spouse has adequate life insurance to cover support obligations in case of a sudden death.
  • Designate which parent is responsible for costs associated with children's ongoing medical and dental insurance and related expenses.
  • Don't forget childcare, education and extra-curricular activity expenses and whether they will be paid directly to the provider.
  • Address how you will deal with delinquent payments.
    
• Travel details and expenses when parents live in different states
  
  
  • Be specific if there are age-related travel concerns or other requirements.
  • State any restriction on domestic or international travel.
    
• Changes and Notifications
  
  
  • Draft a set of rules for how you will deal with changes like special events or unanticipated business travel.
  • Set up a system that gives the other parent notice on a considerate basis when making long term plans or changes in address, telephone number or employment.
  • Include notice provisions for school activities, events, and conferences.
  • Establish how notice will be given of new childcare providers, children's location during visitation and new relationships or people present during time with children.
    

And Don't Forget....

Parents end up back in court when they fail to plan for events in the future. Make sure your parenting plan contains provisions that address:

• Future moves to different states
• Elective medical/dental procedures like orthodontics
• Impact of loss of employment or disability
• Methods and timeline for child support review
• College selection and expenses
• Adjusting visitation based on children's ages

To ensure you have adequately addressed all appropriate custody issues, you should review your parenting plan with an experienced family law attorney prior to agreeing to a final version or having it entered as an order by the court.

SOURCE: FindLaw

Custody & Visitation Dos and Don'ts

The one thing divorce doesn't change is your status as your child's parent. Whether you have a traditional visitation schedule or a flexible co-parenting plan, or whether your plan is temporary or permanent, you can make the time spent with your children as happy and productive as possible. When questions regarding custody and visitation arise, an experienced family law attorney is the best source for competent counsel.

DO

• Balance flexibility and promptness. Try to be on time when children are being picked up and when children are being returned. It shows you respect your former spouse and your kids, and lets them know visitation is a priority to you. That said, being flexible about traffic, play dates and sick kids makes the time you spend with your children more like real life and less like something that is different from the rest of their lives. It also eases stress around transitions for your children.
  
• Make visitation time parenting time. Resist the impulse to be a Disney Dad or a Merry Mom by cramming your time full of treats, outings and special events. Don't over schedule your child. Your kids need time to just be with you and to talk with you where you can really listen. Kids like rules and having reasonable responsibilities during their time with you makes your space feel more like home.
  
• Make your home their home. Kids need a place in your place and friends where they go. Get to know your neighbors and help your children make friends. Set a schedule so your children know what to expect. Use checklists or separate sets to make sure they have what they need in both places they live.
  
• Make age appropriate schedules. Toddlers and teenagers have different needs. Do the research and make sure your visitation schedule or parenting plan is meeting the emotional needs of your child's current developmental stage.
  
• Include extended family. Try and fit in visits to grandparents and other extended family so your child stays in touch.
  
• Respect your Ex. Let them know about changes in your scheduling, travel plans, or if new babysitters or romantic interests will be with your kids while they are with you. Communicate where you will be while you have the kids and how emergencies should be handled.
  
• Seek experienced counsel from a family law attorney if you need legal advice or representation on any custody or visitation issue.

DON'TS

• Don't make love equal money. You should support your child's time with their other parent and it should never be about whether or not support has been paid. Equating time with money makes your kids feel like they are worth exactly as much as the support you receive.
  
• Don't let divorce emotions spill out during visitation transitions. Don't fight in front of the kids. Don't use guilt or make your kids feel bad about enjoying being with their other parent. Make every effort to be polite to each other when the kids are around or when they can hear you.
  
• Don't make your kids arrange their own visitation. Setting schedules is an adult responsibility you need to do for your child.
  
• Don't make kids be emotional mules. Don't ask you kids to carry messages to your ex, don't ask them to spy and don't subject them to the third degree about every detail of time spent away with the other parent when they are with you.
  
• Don't take your child's side in their disagreements with the other parent. Let your children know they need to resolve problems with their other parent independently and don't let them pull you into the middle of their dispute, unless you believe they are in danger or you have serious concerns.
  
• Don't allow your child to manipulate visitation. Unless your child is under five, children must understand that visitation is not optional. Children under five are often resistant to visitation switches and need some extra understanding. At any age, if visitation resistance persists both parents need to support seeking professional help to address the issue.
  
• Don't feel like you have to handle it all yourself. Experienced family law attorneys are available to support you in stressful times and have the expertise to help you reach the best possible resolution of your custody and visitation issues.

SOURCE: FindLaw

Child Custody - An Overview

The child custody and visitation landscape has changed. There is a decades' worth of research on the impact of divorce on families to guide divorcing parents. At the same time, these couples face increased pressures from society and the courts to work together to solve custody issues during a time when they are at their deepest emotional distance.

Divorcing parents need to learn the child custody and visitation options that are available to them and the legal standards applied to the different options. They need to work through the emotional stress of a divorce, in order to do what is best for their child, hopefully agreeing on custody and visitation issues without the need for a court order. Knowledgeable advice and representation from an experienced family law attorney often makes the difference in reaching a fair, mutually satisfactory agreement. When an agreement cannot be reached, success at trial may depend on the early involvement of a family law attorney with an established track record in contested custody matters.

Basic Custody Terms

Legally, the set of parental responsibilities regarding day-to-day care of the child as well as the rights to direct the child's activities and make decisions regarding the child's upbringing have been split into the separate categories of physical and legal custody for family law purposes.

• Physical Custody means the actual living arrangements of the child and the rights and responsibilities associated with daily childcare; and
  
• Legal Custody mean the responsibilities associated with raising a child and includes such questions as religious upbringing, school choice, and medical care.

Georgia Divorce Laws

Residency Requirements for Divorce in Georgia
The spouse filing must have been a resident of Georgia for 6 months and file for divorce in the county of residence. However, a non-resident may file for divorce against a spouse who has been a resident of Georgia for 6 months. In such cases, the divorce must be filed for in the county in which the respondent resides.
[Code of Georgia Annotated; 19-5-5].

Legal Grounds for Divorce in Georgia

1. No Fault Divorce: Irretrievable breakdown of the marriage.
[Code of Georgia Annotated; 19-5-3].
2. General Divorce:
1. Impotence
2. Adultery
3. Conviction of and imprisonment of over 2 years for an offense involving moral turpitude
4. Alcoholism and/or drug addiction
5. Confinement for incurable insanity
6. Separation caused by mental illness
7. Willful desertion
8. Cruel and inhuman treatment which endangers the life of the spouse
9. Habitual intemperance (drunkenness)
10. Consent to marriage was obtained by fraud, duress, or force
11. Spouse lacked mental capacity to consent (including temporary incapacity resulting from drug or alcohol use)
12. The wife was pregnant by another at the time of the marriage unknown to the husband
13. Incest
[Code of Georgia Annotated; 19-5-3].

Legal Separation in Georgia
There are legal provisions in Georgia for an action for separate maintenance for spouses who are living separately, but not divorcing. The factors and conditions are the same as those listed below under Alimony and Spousal Support.
[Code of Georgia Annotated; 19-6-10].

Simplified/Special Divorce Procedures in Georgia
There are no legal provisions in Georgia for simplified divorce.

Divorce Mediation or Counseling Requirements
There are no legal provisions in Georgia for divorce mediation.

Divorce Property Distribution
Georgia is an "equitable distribution" state. The courts will distribute the marital property including any gifts and inheritances, equitably. There are no factors to be considered specified in the statute.
[Code of Georgia Annotated; 19-5-13 and Georgia Case Law].

Alimony and Spousal Support
Permanent or temporary alimony may be awarded to either spouse, unless the separation was caused by that spouse's desertion or adultery. The following factors are to be considered:

1. The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker, in childcare, education, and career-building of the other spouse
2. The duration of the marriage
3. The financial resources of each spouse
4. The age and physical and emotional condition of both spouses;
5. The value of each spouse's separate property
6. The earning capacity of each spouse
7. Any fixed liabilities of either spouse
8. The standard of living established during the marriage
9. The time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment.

[Code of Georgia Annotated; 19-5-5+].

Spouse's Name After Divorce
If requested, a spouse's name may be restored.
[Code of Georgia Annotated; 19-5-12 and 19-5-16].

Child Custody After Divorce
Joint or sole custody is granted, based upon the best interests of the child and a consideration of the following factors:

1. The suitability of each parent as custodian
2. The psychological, emotional, and developmental needs of the child
3. The ability of the parents to communicate with each other
4. The prior and continuing care that the parents have given the child
5. Parental support for the other parent's relationship with the child
6. The wishes of the child (considering the child's age and maturity)
7. The safety of the child
8. The geographic proximity of the parents
9. Any custodial agreements of the parents
10. Any history of domestic abuse

There is a presumption against awarding joint custody in Georgia when there is a history of domestic abuse.
[Code of Georgia Annotated; 19-9-1 to 19-9-51].

Child Support After Divorce
Both parents are liable for the support of minor children. The court may award child support from either parent, based on their customary needs and the parents' ability to pay. There are no specific factors for consideration set out in the statute. However, there are official child support guidelines set out in the statute that are to be followed in all cases in which the parents are not able to reach an agreement. In such cases there are factors which will be followed in special circumstances. The special circumstances include:

1. The age of the children
2. A child's medical costs or extraordinary needs
3. Educational costs
4. Daycare costs
5. Shared physical custody arrangements
6. A parent's support obligations to another household
7. Hidden income of a parent
8. The income of the parent with custody
9. Contributions of the parents
10. Extreme economic circumstances
11. A parent's own extraordinary needs
12. Historic spending levels of the family
13. The cost of health and accident insurance coverage for the child
14. Any extraordinary visitation travel expenses

[Code of Georgia Annotated; 19-5-12, 19-6-14, and 19-6-15.]

SOURCE: Divorce Laws in America

Medical Savings Plans - One Alternative for Handling Children's Medical Expenses

Shannon Cavers of the Houston Divorce and Family Lawyer Blog has published several articles on reimbursement of children's medical expenses. This is the third:

Many employees have access to pre-tax savings devices called Medical Savings Plans or Medical Savings Accounts. Through such plans, an enrolled employee participant may designate a portion of his/her pre-tax income to be deposited in an account designated for health care. One of the benefits is lowering the employee’s taxable income.  Another benefit is saving for large ticket items such as annual deductibles, surgeries, braces, or other medical services which may not be covered by an insurance carrier.

I used to dislike such plans because withdrawing funds for reimbursement was too burdensome and paper-work intensive for the tax benefit. However, I have heard that many medical savings plans are much more user friendly these days, offering access to the deposited funds through a debit card.   

For older children who take themselves to dental appointments or to the orthodontist, this may be a great vehicle for paying and tracking the child’s medical expenses.

For more information on such plans, speak to your human resources department or your CPA to learn more about the tax benefits.

SOURCE FOR POST: Houston Divorce and Family Lawyer Blog

Deciding Factors in Awarding Child Custody: Can gay parents be awarded custody?

The impact of a parent’s homosexual relationships on custody decisions varies dramatically from state to state. Courts in many states are more willing to assume harmful impact to a child from a parent’s homosexual relationship than from a heterosexual relationship. On the other hand, some states treat homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown.

A homosexual parent (or a heterosexual parent) seeking custody will have a stronger case if he or she presents evidence that the child does not witness sexual contact between the partners and that the child likes the parent’s partner.

SOURCE: American Bar Association

Deciding Factors in Awarding Child Custody: What if a parent is having nonmarital sexual relations?

In most states, nonmarital sexual relations are not supposed to be a factor in deciding custody unless it can be shown that the relationship has harmed or is likely to harm the child.

For example, if one parent has had a discreet affair during the marriage, that normally would not be a significant factor in deciding custody. Similarly, if after the marriage is over, a parent lives with a person to whom he or she is not married, the live-in relationship by itself normally is not a major factor in deciding custody. In the case of live-in relationships, the quality of the relationship between the child and the live-in partner can be an important factor in a custody dispute.

Having sex with another adult can be a negative factor, however, if the parent’s sexual relationship has placed the child in embarrassing situations or caused significant stress to the child. In one case, for example, the mother had on a number of occasions engaged in sex with a neighbor while her child was home. After the wife of the neighbor appeared at the door one day and demanded that the child tell her what the adults were doing in the bedroom, the mother lost custody primarily because of her sexual relationship and its impact on the child.

SOURCE: American Bar Association

Deciding Factors in Awarding Child Custody: What happens when one parent tries to undermine the child’s relationship with other parent?

Most states declare a specific policy favoring an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child’s relationship with the other parent, that is a negative factor against the parent who is trying to hurt the relationship. If other factors are close to equal, a court may grant custody to the parent who is more likely to encourage an open and good relationship with the other parent.

Similarly, if a custodial parent regularly interferes with visitation, that is a negative factor against the custodial parent and can lead to modification of custody to the noncustodial parent (assuming the noncustodial parent is able to properly care for the child).

SOURCE: American Bar Association

Deciding Factors in Awarding Child Custody: Is the child’s preference for one parent or another considered?

Depending on the child’s age and maturity level, his or her wishes can be an important factor in deciding custody. Some judges do not even listen to the preferences of a child under the age of seven because they assume the child is too young to express an informed preference.

A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child’s reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed.

On the other hand, if a child expresses a good reason related to the child’s best interest—such as genuinely feeling closer one parent than the other—the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an "absolute right" to choose the parent with whom the child will live, as long as the parent is fit. [EDITOR'S NOTE: This is changing in Georgia for cases filed after January 1, 2008; after that date, the judge will consider the child's preference but will not be bound by it if it is not in the child's best interest. FOR MORE INFORMATION, see my posts at http://www.gafamilylawblog.com/family_law_legislation/index.html]

If a judge decides to talk with the child, the judge usually will do so in private—in the judge’s chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents’ attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychologist or social worker, to talk to the child and report to the court.

SOURCE: American Bar Association

Deciding Factors in Awarding Child Custody: Are mothers or fathers more likely to be awarded custody?

Until the mid-1800s, fathers were favored for custody in the event of a divorce because children were viewed as property, similar to the farm or family business when a couple divorced. Around 1850, most states switched to following the Tender Years Doctrine or a strong preference for the mother unless there was something very wrong with her, such as mental illness, alcoholism, or an abusive relationship with her child.

Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with either parent. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.

In some states, courts say that mothers and fathers are to be considered equally, but have held that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female, although it is possible for fathers in these states to gain custody, even when the mother is fit.

SOURCE: American Bar Association

Deciding Factors in Awarding Child Custody: What are the main child custody options?

Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.

In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent and the other parent is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation—a right to be with the child, including for overnight visits and vacation periods.

In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child. Joint legal custody refers to both parents sharing in major decisions affecting the child. The most common issues are school, health care, and religious training (although both parents have a right to expose the child to their respective religious beliefs). Other issues on which the parents may make joint decisions include: extra-curricular activities, summer camp, age for dating or driving, and methods of discipline. Many joint custody orders specify that parents should consult a mediator when they cannot agree on an issue.

Joint physical custody refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be equally divided between the parents. Parents who opt for equal time-sharing have come up with many alternatives such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; and alternate six month periods.

As with financial issues in a divorce, most divorcing parents have reached an agreement on custody before they go to court. Fewer than 5% of parents have custody of their child decided by a judge. When parents cannot agree on custody of their child, the court decides custody according to “the best interest of the child.” Determining the best interest of the child involves consideration of many factors

SOURCE: American Bar Association

10 Tips for Winning at Custody

Winning at Custody is one of the most difficult issues parents confront in divorce. In many cases, both parents want custody and are willing to spend whatever it takes to win. Custody is all about what is best for the children - and that involves proving that you are the best parent - i. e. that the other parent is not as good a parent as you and/or that the other parent is just simply a bad parent.

My recommended tips for winning at custody are:

1. If you are not involved in your children's lives now, you are not getting custody from a judge. If you are a working parent who lets your spouse handle all of the details of parenting, you are not prepared to win at custody. You must either change your objectives or change your parenting. If you really want custody, get involved now - in all aspects of your children's lives. Get involved in your children's schooling. Attend their extra curricular events. Take them to the doctor and dentist. Get to know what professionals your children see and be involved with them?

2. Make sure that you are not exposing your children to unsafe or unhealthy environments when they are with you. Are you involved in another relationship? Has there been more than one? Be very careful about exposing your children to your companion(s). Many judges, professionals, and other parents object to the children being subjected to other relationships too early in that process. More important, if you really want to win at custody, it should be because you want to spend time with your children parenting them. Spending time with someone else when you have the children is a recipe for losing at custody in court.

Modern Child Custody Legal Terminology

Legal custody: "Gives a parent the right to make long-term decisions about the raising of a child, and key aspects of the child's welfare - including the child's education, medical care, dental care, and religious instruction. In most child custody cases, legal custody is awarded to both parents (called 'joint legal custody'), unless it is shown that one parent is somehow unfit, or is incapable of making decisions about the child's upbringing. Legal custody is different from 'physical custody,' which involves issues such as where the child will live."

Physical custody: "A parent who has 'physical custody' of a child has the right to provide day-to-day care for the child. The key aspect of physical custody in most child custody situations is that the child will live with the parent who has physical custody. Most modern custody arrangements give physical custody to one parent (called the 'custodial' parent) and grant visitation rights and shared 'legal custody' to the noncustodial parent. Typically, visitation rights give the non-custodial parent exclusive time with the child every other weekend, alternating major holidays, and a number of weeks during summer vacations.

"In the past, true 'joint physical custody' arrangements were more common, in which the child lived with each parent roughly half the time. Today, such arrangements are rare, and in order to lessen disruption of the child's routine, one parent is usually given primary physical custody of the child."

Sole Custody: "A parent with 'sole custody' of a child has exclusive physical and legal custody rights concerning the child. Sole custody arrangements are rare, and are usually limited to situations in which one parent has been deemed unfit or incapable of having any form of responsibility over a child - for example, due to drug addiction or evidence of child abuse. In sole custody situations, the child's other parent (also known as the 'noncustodial' parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits may be supervised, especially in situations involving domestic violence or child abuse)."

Joint Custody, sometimes referred to as shared custody or shared parenting, has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts: "In child custody situations, 'joint custody' usually refers to one of two possible scenarios: joint legal and physical custody, or joint legal custody.

"In true 'joint custody' arrangements, parents share equal 'legal custody' and 'physical custody' rights. This means that parents participate equally in making decisions about the child's upbringing and welfare, and split time evenly in having day-to-day care and responsibility for the child - including the parent's right to have the child live with them. True joint custody arrangements are rare, because of their potential to cause both personal difficulties (stress, disruption of child's routine) and practical problems (scheduling, costs of maintaining two permanent living spaces for the child).

"Much more common than true joint custody arrangements (where both physical and legal custody are shared) is 'joint legal custody,' in which both parents share the right to make long-term decisions about the raising of a child and key aspects of the child's welfare, with physical custody awarded to one parent."

Joint legal custody: "Joint legal custody refers to both parents sharing in major decisions affecting the child. The custody order may describe the issues on which the parents must share decisions. The most common issues are school, health care and religious training (although both parents have a right to expose the child to their respective religious beliefs). Other issues on which the parents may make joint decisions include: extra-curricular activities, summer camp, age for dating or driving and methods of discipline.

"Many joint custody orders specify procedures parents should follow in the event they cannot agree on an issue. The most common procedure is for the parents to consult a mediator. ...

" 'Joint physical custody' refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be equally divided between the parents. Parents who opt for equal time-sharing have come up with many alternatives such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; and alternate six month periods."

Sources: ClarionLedger.com and Florida Divorce Law Blog

Think outside the box for parent-child communications

As our society becomes ever more mobile, parents can have a tough time when it comes to staying abreast of their children’s daily lives. While these solutions are pretty ‘Version 1.0? for today’s teens, they can work great for parents. (When did teenagers stop using email?)

• Basecamp (http://www.basecamphq.com/) is an online project-management system. Although designed for businesses, it’s a great way for parents and kids to communicate, share pictures, schedules, and more. If you can keep all of your stuff within one project, you can’t beat the price: free.
• Flickr (http://www.flickr.com/) is the well-known online photo-hosting service. Remember, parents, it doesn’t have to be only pictures of your kids’ activities. Take pictures of your own activities to share them with your kids. Again, you can’t beat the price: free.
• Live Journal (http://www.livejournal.com/) is an online journaling system, and you can set it up so that entries are visible to anyone, just your friends, or only you. Not only can this service give you a place to write down your thoughts (just remember to set those to private!), but you can compose messages to your kids and engage in dialog with them. Once again, it’s free.
• Campfire (http://www.campfirenow.com/) is an online instant-messaging system that works via the Web, so no worries about who has Yahoo!, MS Messenger, AOL Instant Messenger, and so on. As long as the total number of chatters is four or fewer, it’s (surprise!) free.

While nothing is better than in-person communications, followed closely by a telephone call, the advantage of these options (except for Campfire) is that you can do them while your kids aren’t available by phone (in school, sleeping, etc.). When your kids get  home or wake up, they can check to see what you’ve left for them.

These options are not the only ones out there, and may not even be the best options. Hopefully they will inspire you to find more ways to keep in touch with your kids, even if they just live across town.

Sources for Post: Indiana Family Law and Divorce Help Network

Using Parenting Coordinators to Resolve Family Law Issues

What happens when parents cannot agree on issues pertaining to their children? In the past, this situation typically resulted in both parents hiring attorneys, going to Court, slugging it out, and ultimately having a Judge decide the issues for them. Fortunately, there is another option available today for parents facing this situation: utilize a parenting coordinator.

Parenting coordinators usually have backgrounds as mental-health professionals, lawyers or mediators, and they typically have completed a training certification course. Basically, these professionals attempt to establish rules or communication procedures to help parents work together more effectively, and I believe that they can be very helpful in that capacity. Some states can mandate the use of a parenting coordinator, though I am not aware of that ever being done in South Carolina.

Parenting coordinators usually analyze the parents’ communication styles and parenting techniques, and then they suggest ways to improve any deficient areas. In some cases, the coordinators will get input from the children to get their points of view. The goal of the parenting coordinator should be to give parents the skills to resolve disputes themselves, as they are really the best people to make decisions concerning their children.

Situations involving extremely high-conflict parents, domestic violence, substance abuse, or severe mental illness are probably not good candidates for involvement by parenting coordinators. Similarly, I believe that while it might make sense for parents to grant the coordinator the ability to decide “minor” issues should an impasse arise, they should not delegate more important decisions. For instance, I do not believe that parenting coordinators should make decisions that affect the rights of parents, such as custody modifications, relocation decisions, and the like.

Source:  "A Referee for Mom and Dad" by Rachel Emma Silverman, published in The Wall Street Journal.
Source for Post: South Carolina Family Law Blog

Introduction to Child Custody and Visitation in Georgia

The question of "Who gets custody of the kids?" is one of the most difficult and often the most emotionally draining both for parents and their children, when spouses divorce. Custody and visitation are the legal terms in court ordered determinations of which parent the child lives with and the conditions for the child to visit the other parent. Custody and visitation are never considered to be final. In Georgia, the law does not favor either the mother or father. Rather, they look to the relationship of each parent with the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents. This section is designed to give you a general knowledge of the issues involved in determining the parties custody and visitation rights.

Georgia Divorce Laws

The increase in divorce has its effect, directly or indirectly, on virtually every family in the country. The following information is designed to summarize briefly Georgia's divorce laws.

Marriage is a civil contract which the state has an interest in preserving. Accordingly, the marriage relationship can be dissolved only as provided by law, by either a divorce or an annulment. It also may be altered by a decree of separation granted by our courts. In any case, there must be a proceeding in the Superior Court of the county in which the person seeking the divorce, separation decree or annulment must prove "grounds" (valid reasons prescribed by law).

What are the grounds for divorce in Georgia?

In Georgia there are 13 grounds for divorce. One ground is "irretrievably broken" (sometimes referred to as the "no-fault" ground). The other 12 grounds for divorce in Georgia are "fault" grounds.

What is a "no-fault" divorce?

To obtain a divorce on this basis (irretrievably broken), one party must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary to show that there was any fault or wrongdoing by either party.

What are the "fault" grounds?

To obtain a divorce on one of the 12 "fault" grounds, one must prove that there was some wrongdoing by one of the parties to the marriage.

As an example, one fault ground is adultery. Adultery in Georgia includes heterosexual and homosexual relations between one spouse and another individual.

Another "fault" ground for divorce in Georgia is desertion. A divorce may be granted on the grounds that a person has deserted his or her spouse willfully for at least a year. Other "fault" grounds include mental or physical cruel treatment, marriage between persons who are too closely related, mental incapacity at the time of marriage, impotency at the time of marriage, force or fraud in obtaining the marriage, pregnancy of the wife unknown to the husband at the time of the marriage, conviction and imprisonment for certain crimes, habitual intoxication or drug addiction, and mental illness.

Is there a residence requirement for getting a divorce in Georgia?

Yes, one spouse must have lived in the state of Georgia for six months or Georgia must have been the last domicile of the marriage.

Must the husband and wife live apart when a divorce complaint is filed?

No, but the spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house, if they are not sharing the same room and/or not having a sexual relationship.

How does one file for a divorce?

The person seeking the divorce (the plaintiff) will file a document called a "complaint" with the appropriate Superior Court. This complaint includes information on the marriage including present living arrangements, children of the marriage, assets, debts, and the specific reason claimed for seeking a divorce. A copy of the complaint will be served on the other spouse (the defendant) by the sheriff.

Where does one file for a divorce?

A complaint for divorce should be filed in the Superior Court of the defendant's county of residence or, if the defendant has recently moved from the state of Georgia, in the county of the plaintiff's residence. This would be considered the domicile of the marriage. Upon the defendant's consent, the complaint may be filed in the plaintiff's county of residence regardless of whether the defendant has moved from the state of Georgia or not.

What should I do if I receive a complaint for divorce that my spouse has filed?

The spouse who receives the complaint should promptly consult a lawyer. The spouse may contest the reason claimed for the divorce or contest the claims for child custody, child support, alimony or property division by filing an answer with the court. If an answer is not filed within 30 days, the right to contest the complaint may be lost.

Is there a way to live apart without getting a divorce?

A party who wishes to live apart permanently, but who does not want to get a divorce, may file a "separate maintenance" action. The spouses will remain legally married although living apart. The court may order that alimony be paid by one spouse to the other and the court may divide property between the parties.

What is an annulment?

Unlike a divorce, which dissolves a valid marriage, an annulment is a legal decree that the marriage is now void and was invalid from its inception. If there are children born of the marriage, an annulment may not be granted and the marriage may only be dissolved by divorce.

Must I go to court to get a divorce?

Not necessarily. Spouses may be able to reach an agreement resolving all issues arising from the marriage, including finances, division of property and custody and visitation of children. The agreement is presented to the court as a settlement agreement and, upon approval, made an order of the court. The court's order, called a final judgment and decree, concludes the lawsuit. If the parties cannot reach an agreement, a judge or jury will resolve the issues. However, a judge always decides matters of child custody and visitation.

How long does it take to get a divorce?

If there is agreement between the parties, the divorce is considered uncontested. An uncontested divorce may be granted 31 days after the defendant has been served with the complaint for divorce. If there is disagreement as to any matter, the divorce will be obtained when the case reaches the court, which can take many months.

What happens while I wait to go to court?

Either of the spouses may request a temporary hearing. This hearing is not a final trial. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of property on a temporary basis until the final trial. The judge will issue a temporary order that applies only until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.

What is decided at final trial?

Questions of child custody and visitation are decided by the judge. The judge alone or a 12-person jury (if one of the parties has requested) will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony and certain findings concerning child support (gross income of both parties and whether any deviations from teh presumptive amount of child support are in the best interests of the child, and if so, what those deviations should be). At the final trial, both spouses present evidence by their own testimony and may call other witnesses. The decision rendered by a judge or jury is written into a court order that is binding upon both parties. The wife's maiden or former name can be re-established if she so desires.

What about the children?

The welfare of children is of major concern to the court. Neither parent is automatically entitled to custody. The judge looks at the best interests of the child when determining  custody. The judge considers many factors when deciding custody, including the age and sex of the child, compatibility with each parent and the ability of each parent to care for and nurture the child. A child more than 14 years of age can choose which parent will have custody upon the consent of the court. The court considers it important for a child to maintain relationships with both parents; therefore, visitation rights are awarded to the parent who is not given legal custody of the child.

May the parents share custody?

The court, in its discretion, can award joint custody instead of sole custody. There are two types of joint custody. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the child; joint physical custody means that physical custody is shared by the parents in such a way to assure the child substantially equal time and contact with both parents. In awarding joint custody, the court may order joint legal custody, joint physical custody or both.

What are child support obligations?

The child support law in Georgia changed effective Jan. 1, 2007. The new law is based on an "income shares" model that requires consideration of both parties' gross income. "Gross income" has a very broad definition and encompasses salary, commissions, income from self-employment, bonuses, overtime payments, severance pay, recurring income from pensions, interest and divident income, trust income, capital gains, gifts, prizes, lottery winnings and income from any other source. Once the monthly gross income of each party is determined, the two incomes are added together to get the combined ajusted income amount. A Child Support Obligation Table is then used to get the Basic Child Support Obligation. To use the table, locate the line corresponding with the combined adjusted income amount and then apply the amount in the column that corresponds with the number of children for whom support is being determined. That Basic Child Support Obligation is then applied to each parent's proportionate share of the combined adjusted income.

(For example, if the father's monthly gross income is $3,000 and the mother's montly gross income is $2,000, their combined adjusted income is $5,000, of which the mother's income represents 40 percent and the father's income represents 60 percent. The child support obligation for a family with combined adjusted income of $5,000 per month for two children is $1,297. Thus, if the father is the noncustodial parent, he will pay 60 percent of the child support obligation, $778.20, or if the mother is the noncustodial parent, she will pay $518.80, which is 40 percent of the child support obligation.)

The cost of medical insurance on the child and the cost of work-related childcare will result in the amount of the child support payment being modified with credit being given to the parent who is actually paying these expenses. In addition, the amount of child support may be modified by certain deviations provided it is in the best interest of the child to deviate from the presumptive amount of child support. Examples of deviations may be extraordinary education expenses like private school tuition or tutoring; extraordinary medical expenses; or special expenses which must exceed 7 percent of the basic child support obligation, such as extracurricular expenses, sumer camps, dental insurance, parenting time adjustment or any other appropriate deviation. You can access the guided electronic worksheet used in calculating child support at www.georgiacourts.org/csc. You may also download an Excel version of the worksheet through this same website.

In addition to the child support payment, the court (or parties by agreement) will also designate what percentage each parent will pay of the child's uncovered medical and dental expenses.

In Georgia, both parents have a duty to financially support the child until that child turns 18, marries, dies or becomes emancipated, whichever occurs first. However, if the child has not graduated from high school prior to reaching age 18, then the obligation to support that child continues until the child graduates from high school provided the child remains a full-time student, but not beyond the age of 20.

May I receive money for the children's college?

The court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.

What is alimony?

Alimony is payment by one spouse to the other for support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period or until the spouse receiving alimony dies or remarries. It may be paid in one payment of money or property, or it may be paid over a period of time.

What happens to "our" possessions in a divorce?

One of the most difficult and complex areas of divorce is the division of marital property. Marital property is all property acquired during the marriage, except for property received by gift from a third party or by inheritance. Each spouse is entitled to an equitable share of all marital property acquired during the marriage. The judge or jury will decide on the division of marital property. Marital property will be divided equitably (not necessarily equally) between the parties regardless of how the title to the property is held. There is no set formula or percentage amount used to divide marital property.

How will the court order be enforced?

The court order can be enforced by garnishment or a contempt action. A contempt action is filed in the same court that issued the divorce. In addition, support orders can be enforced through the district attorney's office if the non-paying spouse resides out of town.

If my spouse and I agree on all matters pertaining to getting a divorce, do we still need a lawyer?

A lawyer will ensure that all matters that should be resolved in a divorce are resolved. Acting without a lawyer could end up being a costly mistake both to the parties and to their children.

What do I do if I am the victim of family violence?

Georgia has a law protecting victims of family violence. The parties do not have to be married in order for a victim to ask the court for relief. However, the parties have to reside in the same household. A victim of family violence can file a petition with the Superior Court that family violence has occurred in the past and may occur in the future. The court can issue a temporary order granting a variety of remedies, including eviction of the offending party from the residence or providing suitable alternate housing for the victim and children, as well as financial relief.

The victim does not need a lawyer to file a Family Violence Petition. The clerk of the Superior Court in the victim's residing county may provide forms for the Petition or be able to direct a victim to a family violence shelter or social service agency for direction.

SOURCE: State Bar of Georgia

Home Alone in Georgia

One of the most frequently searched issues on my Georgia Family Law Blog is the following question:

Q. At what age can children be left at home alone?

The answer appears in a brochure prepared by the Cobb County Department of Family and Children Services Child Protective Services, which appears on the Cobb County Schools website:

A. While there is no law that constitutes Lack of Supervision, Georgia policy states children 8 and under should not be left alone. Children 9 to 12 can be left alone for up to two hours or less. Children 13 and above can be left alone and act as a caretaker (babysitter) for younger children. This depends on the child’s level of maturity (limit of twelve hours).

SOURCE: Cobb County Schools

Your Rights As A Noncustodial Parent

Losing fulltime access to your kids is the most painful part of divorce for most parents. Suddenly you're stuck with being what feels like a "visitor" in your child's life. What are your legal rights when you're a part-time parent because of divorce?

The Court Order Rules

What's written in the court order on custody, sometimes called a "parenting plan" or "visitation schedule," is what's legally enforceable. So it's very important to think through any difficulties you and your soon-to-be-ex may have making a visitation schedule work before you put your plan to paper.

Issues that should be dealt with in detail in your court order if you're the noncustodial parent include:

• Exact days and times the children will spend with you. Phrases like "reasonable visitation" don't get you far when you're dealing with an uncooperative custodial parent.
• What holidays the children will spend with you, and the exact days and times these holidays will begin and end
• What contact the children can have with you during the time they're with the custodial parent, including phone calls and emails
• Your ability to participate in the childrens' school and extra-curricular activities, and the custodial parent's duty to inform you of these events
• Your access to school and medical records
• Who will provide transportation for the children, especially if you live far away and transportation is expensive

Georgia Child Custody Laws

CHAPTER 9 CHILD CUSTODY PROCEEDINGS

19-9-1. Custody of children; how determined; discretion of court; right of child 14 or over to select custodial parent; consideration of child's educational needs; when visitation rights may be reviewed; notification of change in residence; application of Article 3 of this chapter.

(a)(1) In all cases in which a divorce is granted, the party not in default shall be entitled to the custody of the minor children of the marriage. However, in all cases in which a divorce is granted, an application for divorce is pending, or a change in custody of a minor child is sought, the court, in the exercise of a sound discretion, may look into all the circumstances of the parties, including improvement of the health of a party seeking a change in custody provisions, and, after hearing both parties, may make a different disposition of the children, placing them, if necessary, in possession of guardians appointed by the judge of the probate court.

(2) In addition to other factors that a court may consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of family violence:

(A) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;

(B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;

(C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child or children for the purposes of custody determination; and

(D) The court shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The court may, in addition to other appropriate actions, order supervised visitation pursuant to Code Section 19-9-7.

How Old Is Old Enough? Age-Related Concerns for Childcare and Babysitting

In child custody cases, parents often accuse each other of leaving the child inadequately supervised.  The allegations can be that the child was left home alone or left with someone who cannot properly supervise the child (such as relatives who are too old or too young).  Left Unsupervised: A Look at the Most Vulnerable Children, a 2003 study published by the non-profit research organization Child Trends addressed the large number of children are left without care and supervision by their parents.

Surprisingly, most States do not have regulations or laws about when a child is considered old enough to care for himself/herself or to care for other children.  Some states have guidelines or recommendations that are usually distributed through child protective services at the county level.  Similarly, reports of child neglect can be made to the [Department of Family and Children's Services], though the response there may be very inconsistent and erratic.

As a practical matter, the difficulty in this area centers on the fact that every child is different.  Establishing a rule that a child must be X years old to stay home alone or supervise other children would not solve this problem, because some children are mature at an early age, some are immature, and many fall somewhere in the middle.  Wise parents base their decision about leaving his or her minor child unsupervised upon careful consideration of the child's maturity and emotional stability.

Family dynamics also must play a part in a parent's decisions about child care. Should a sibling be left in charge of younger siblings? If so, how old should that sibling be? How long should or could he/she be in charge? In some families, it would never work to leave one child in charge because of family dynamics, sibling rivalries, or other special challenges faced by one of more of the children.  The maturity and capabilities of the elected babysitter should be the controlling factors.

To help parents ensure that their children are safe, the University of Michigan Health System has compiled an excellent resource Babysitter Safety - What Parents and Sitters Need to Know.  This website includes the following types of information:  how to choose a babysitter, things to tell the sitter before you leave, information sitters should have, resources for sitters, the dangers of leaving kids home alone, information about problems associated with sibling sitters, and more.

Source:  "Home Alone: Child Care and Babysitter Issues" by Jeanne M. Hannah, published at her Updates in Michigan Family Law blog.
SOURCE FOR POST: South Carolina Family Law

A Win-Win Custody Battle Strategy

Divorce and Family Law in Tarrant County had a great post this week concerning a win-win custody battle strategy which I think all PARENTS should consider. While it is not something new or really all that different, my fellow blogger actually puts it in writing for all to consider. Below is the meat of his post and I would strongly suggest all of those involved in a custody battle consider it. (Thanks also to Grant Griffiths at the Kansas Family Law Blog for alerting me to it):

Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.

1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture. What are the resources to work with:

Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has

3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to ‘standard’ solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.

4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.

Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. Collaborative Law is one way to accomplish that. This is actually a very common approach to problem-solving in Collaborative Law. Even in traditional litigation, you can use this system alone or together with the other parent. If you work on this alone, you can create a better plan to present in court or in negotiations. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.

Please give this a try and let me know how it works for you!

Sources for Post: Divorce and Family Law in Tarrant County and Kansas Family Law Blog

Child Custody Basics

When parents divorce, the divorce decree will specify with whom the divorcing couple's children will live (and circumstances under which the other parent will visit with the children). Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests.

Physical and Legal Custody

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.

Joint Custody

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Split Custody

Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

Child Custody for Immigrants

Many illegal immigrants in places like the Georgia carpet-mill town of Calhoun are taking special precautions in case they are jailed or deported. They are drawing up legal instructions designating someone to take care of their children.

At the urging of activists, parents are authorizing, in writing, a friend, neighbor or relative to watch their children until they can be reunited either here or in their home countries. During workplace roundups of illegal immigrants, youngsters sometimes become separated from their parents and are taken into government custody. In some cases, they can be held for days or weeks before they are reunited with their parents on one side of the border or the other.

Under U.S. law, children born in this country are American citizens and cannot be deported. There are more than three million such children in the U.S. There are also an estimated 1.8 million children in the country illegally.

Parents of children both legal and illegal are filling out the papers, specifying such things as whether they want their U.S. born children to stay here or to be sent back to the country where the parent might be deported. Fear is particularly strong in Georgia, where many young mothers work in the fields, carpet mills and produce-packing houses.

One of the nation's strictest immigration-control laws, passed last year, will go into effect July 1st.

SOURCE: WMAZ

Sears blasts majority in Cobb custody case

Court upholds denial of visitation for adoptive father of 10-year-old girl

CHIEF JUSTICE LEAH WARD SEARS, who has made her off-the-bench mission to address family law issues, put her passion into a hard-charging dissent Monday.

Accusing her colleagues on the Supreme Court of Georgia of misstating the record, Sears blasted the 5-2 majority that upheld a Cobb County judge’s decision to deny a man any visitation of the girl he adopted after marrying her mother, who initiated the divorce.

“Make no mistake about it: Mark Q. Taylor will never see his 10-year-old daughter … again,” Sears wrote in the first sentence of her 22-page dissent, joined by Presiding Justice Carol W. Hunstein. “And the reason is because he legally adopted her instead of contributing his genetic material to her conception.”

Sears’ dissent highlighted three family law cases that divided the court—overshadowing a closely watched tort law matter the court dispatched with an 11-page unanimous decision.

Interference with Custody or Visitation in a Georgia Divorce

The following is very general information, not necessarily specific to Georgia law on this subject, found at Georgia Divorce Online:

Know your legal rights if your child's other parent doesn't cooperate with a legally established custody or visitation arrangement.

My ex-wife and I share joint legal and physical custody of our kids. But I am the only one who does their laundry, makes sure their homework is done and keeps their activity schedules straight. How can I get her to share equally in these responsibilities?

First, consider whether or not your ex-wife is intentionally dumping so much responsibility on you. Perhaps her personal or employment schedule is overwhelming. Before taking legal action, try a heart-to-heart conversation without the children present. Explain that it's hard for you to handle everything and ask for her support. If this doesn't work, write her a polite letter detailing your tasks and suggest what she could do to help. Send the letter certified mail, and give her a reasonable time -- say, two weeks -- to respond. If she doesn't acknowledge your letter or make any changes in her behavior, going to court may be inevitable. Ask the judge to order that you and your ex split the parental duties. Sometimes a written order from a judge will spur a lagging parent into action.

Last summer, my ex-husband took our kids on vacation and didn't tell me where they were going. Can I prevent him from leaving me in the dark this year?

This is a tough one. On one hand, your ex-husband is free to take the children where he wants, as long as they aren't harmed -- unless your custody and visitation arrangement provides otherwise. On the other, it may not be in your children's best interest to be unable to speak with you during this time, especially if an emergency arises. The key is to plan ahead.

Ask your ex-husband two months prior to the scheduled vacation where he plans to take the children. It might help to explain why you want this information, so he doesn't think you are trying to interfere with his plans. If he doesn't provide an answer within a week, put the request in a certified letter. You might want to send a copy of this letter to his lawyer, if he has one. Avoid displaying your anger in the letter because you may be required to show it to a judge later. Usually an attorney will convince an ex-spouse to provide this information to avoid embarrassment in court later.

If your ex (or his lawyer) does not respond to your letter, consider filing an "order to show cause" before the vacation. This document would demand that your ex appear in court and explain to the judge why he shouldn't have to tell you where he plans to take the kids. A judge will most likely order your ex to provide the information.

Frequently Asked Questions about Family Law

Q: What is the legal definition of marriage?

A: Most states define marriage as a civil contract between a man and a woman to become husband and wife. The standard way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.

Q: What are the legal effects of marriage?

A: There are several federal and state laws that benefit married couples. Some examples include the right to:

• file joint income tax returns with the IRS and state taxing authorities
• create a family partnership under federal tax laws, which allows you to divide business income among family members-often lowering income tax
• create a marital life-estate trust
• receive spousal and dependent Social Security, disability, unemployment, veterans, pension and public assistance benefits
• receive a share of your deceased spouse's estate under intestate succession laws
• claim an estate tax marital deduction
• sue a third person for wrongful death of your spouse and loss of consortium
• sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation in some states
• receive family rates for insurance
• avoid the deportation of a non-citizen spouse
• enter hospital intensive care units, jails and other places where visitors are restricted to immediate family

Q: What is a legal divorce?

A: Divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce will give each person the legal right to marry someone else. It will also legally divide the couple's assets and debts and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of no-fault divorce laws that can significantly simplify the divorce process.

Q: What is a no-fault divorce?

A: Divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce will give each person the legal right to marry someone else. It will also legally divide the couple's assets and debts and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of no-fault divorce laws that can significantly simplify the divorce process.

Q: What is a fault-based divorce?

A: A fault-based divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence, or infecting the other spouse with a venereal disease.

A Guide For Action When A Spouse Steals Your Children

The Washington, D.C.-based National Center for Missing and Exploited Children (NCMEC) and the American Bar Association, including its Young Lawyers Division, recommend taking the following steps as a guide for lawyers and clients handling these cases after the child has been snatched by a parent.

1. Hire an aggressive family law attorney, preferably one with experience in parental-kidnapping situations.
2. If you have not already filed for divorce, DO SO IMMEDIATELY. File for divorce and full custody of the children.
3. Assemble your documentation of court decrees and custody orders, if any.
4. If you do not have custody, use the Uniform Child Custody Jurisdiction Act, which established rules help courts determine jurisdiction, to petition for custody in the local family court.
5. Ask local police to issue a warrant for the arrest of the kidnapping parent.
6. Insist that a missing person's report be posted immediately on National Crime Information Center and Interpol computers. Many local police departments will mistakenly tell parents that they need to see a final custody order before issuing a missing child report or that a waiting period is required, but this is no longer true. Such delays are prohibited by the National Child Search Assistance Act (P.L. 101-647; 42 U.S.C. 5779, 5780), which requires law enforcement to immediately enter a missing child report into the National Crime Information Center (NCIC).
7. Contact the National Center for Missing and Exploited Children at 1-800-THE LOST or 703-235-3900. The Web address of its international branch is www.icmec.co.uk. The center maintains a missing children's data base and publishes a booklet on preventing and reacting to abduction.
8. Contact the local FBI office. If the FBI tells you that you first need a state warrant, point out that the 1993 International Parental Kidnapping Crime Act ended that requirement.
9. Ask the state prosecutor or district attorney to request the local U.S. attorney's to issue a federal Unauthorized Flight to Avoid Prosecution (UFAP) arrest warrant. The Federal Parental Kidnapping Prevention Act of 1980 provides for the issuance of this warrant.
   Once you have the UFAP warrant, ask the FBI to assist in the investigation and to use the services of the federal Parent Locator Service.
10. Investigate possible civil remedies and consider the viability of a tort suit against the kidnapper, including anyone who may have assisted in the abduction.
11. Use whatever information you have about the abducting parent in your investigation, such as names of family members or friends who may know of his or her whereabouts.
12. If you suspect an international kidnapping, after you have the UFAP warrant, ask the FBI to request the U.S. Attorney's office to have the passport of the kidnapping parent revoked.
13. Call the State Department's Office of Children's Issues (1-202-736-7000), and request the booklet, "International Parental Child Abduction". The booklet outlines what you should do and what the office can do for you.
14. If you have to to litigate the matter in a foreign country, contact the State Department's office of the Overseas Citzens' Services of the Bureau of Consular Affairs for a list of attorneys available for such cases.

SOURCE: All Things Pennsylvania Family Law Blog

An Analysis of Georgia House Bill 369: Attorney's Fees

Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.

Subsection (g) of OCGA section 19-9-3 addresses the issue of attorney’s fees in custody cases. For many years in Georgia, attorney’s fees have not been available in cases dealing purely with custody matters. One party could seek a modification of custody and cause the other party to incur substantial attorney’s fees, with no recourse to recover the fees unless the court made a finding that the party  had engaged in frivolous litigation.

HB 369 provides a long-needed correction of that situation by providing for an award of attorney’s fees in custody cases. It also provides a statutory basis for awards of expert witness fees, guardian ad litem fees and other expenses incurred in the case:

“Except as provided in Code Section 19-6-2, and in addition to the attorney´s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney´s fees and expenses of litigation, experts, and the child´s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney´s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney´s fees made pursuant to this subsection.”

An Analysis of Georgia House Bill 369: Requirements for Relocation and Changes of Addresses of Parents and Children

Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.

Subsection (f) of OCGA section 19-9-3 provides for notice of relocations and changes of addresses of either parent as follows:

“(1) In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.

(2) In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent´s visitation rights or parenting time.

(3) Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.”

An Analysis of Georgia House Bill 369: Arbitration in Custody Cases

Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.

The bill adds a new Code section 19-9-1.1. This statute makes it expressly permissible for the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan. The parents may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter´s decisions shall be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter´s award would not be in the best interests of the child. In its judgment, the judge may supplement the arbiter´s decision on issues not covered by the binding arbitration.

An Analysis of Georgia House Bill 369: Parenting Plans

Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.

OCGA 19-9-1
The previous version of this statute was completely deleted and replaced with new provisions

Parenting plans are now required in all cases involving custody of a child, except in family violence cases. Each parent can submit their own proposed plan or they can submit a joint plan. It is up to the judge as to when the plan must be submitted. A plan must be submitted for all final hearings in original or modification of custody cases, and may, in the judge’s discretion be required for temporary hearings. The final decree  in any case involving custody must include a parenting plan.

What goes into a parenting plan? Unless otherwise ordered by the judge, 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, extracurricular activities, and religious communications.
(2) Unless otherwise ordered by the judge, 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; and
(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.

Finally, 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 judge. Failure to comply with filing a parenting plan may result in the judge adopting the plan of the opposing party if the judge finds such plan to be in the best interests of the child.

Deployed Troops Battle for Child Custody

She had raised her daughter for six years following the divorce, handled the shuttling to soccer practice and cheerleading, made sure schoolwork was done. Hardly a day went by when the two weren't together. Then Lt. Eva Crouch was mobilized with the Kentucky National Guard, and Sara went to stay with Dad.

A year and a half later, her assignment up, Crouch pulled into her driveway with one thing in mind — bringing home the little girl who shared her smile and blue eyes. She dialed her ex and said she'd be there the next day to pick Sara up, but his response sent her reeling.

"Not without a court order you won't."

Within a month, a judge would decide that Sara should stay with her dad. It was, he said, in "the best interests of the child."

What happened? Crouch was the legal residential caretaker; this was only supposed to be temporary. What had changed? She wasn't a drug addict, or an alcoholic, or an abusive mother.

Her only misstep, it seems, was answering the call to serve her country.

Modification of Custody or Visitation FAQ

These frequently asked questions explain your options for changing an established custody or visitation agreement.

Under what circumstances can custody and visitation orders be changed in the state where they were obtained?

After a final decree of divorce or other order establishing custody and visitation is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") can be made without court approval. However, if one parent later reneges on the agreement, the other person may not be able to enforce it. Thus, it is generally advisable to obtain a court's approval of stipulated modifications. Courts will usually approve modification agreements unless it appears that they are not in the best interests of the child.

If a parent wants to change an existing court order and the other parent won't agree to the change, the parent wanting a change must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability and helps prevent the court from having to deal with frequent and repetitive modification requests.

What qualifies as a substantial change in circumstances?

Here are some examples:

• Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contact with their children. If the parents can't reach an agreement, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.

• Change in lifestyle. A parent can obtain a change in a custody or visitation orders if substantial changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case. For example, most courts do not consider a new same-sex relationship to be a lifestyle change that could be detrimental to the children, but in some conservative areas that is a real possibility.

SOURCE: FindLaw

Modification of Custody

Courts have the power to modify child custody arrangements to meet the needs of the child and to respond to changes in the parents' lives.

A parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order. The change of circumstance usually involves something negative in the child's current environment--such as improper supervision, or harmful conflicts with the custodial parent or stepparent.

A child's preference to live with the noncustodial parent can be a basis for modifying custody, but the child's reasons must be well-based and not appear to be the result of coaching or bribery.

In one case, a father was trying to gain custody of his thirteen-year-old son. In the days before the custody hearing, the father presented his son with a series of gifts reminiscent of the song "The Twelve Days of Christmas". Among the acquisitions of the boy: a horse, two television sets, a minibike, a shotgun, a motorcycle, and a private telephone. The father did not gain custody.

In addition to showing a change in circumstances, the parent seeking a change of custody must show that he or she can provide a better environment for the child than the child's current environment.

In order to discourage parents from constantly litigating custody, some states apply a special standard for custody modifications sought within the first year or two after a prior custody order. In those states, the parent must show not only a change of circumstances, but also that the child is endangered by the child's current environment. After expiration of the one- or two-year period, the courts apply normal standards for modification (without having to show endangerment).

If parents voluntarily wish to change custody or the visitation schedule (see below), they may do so without having to prove special factors such as endangerment or a change in circumstances. Parents may change custody and visitation without obtaining a court order, but if the parent receiving custody or more visitation wants to make the modification "official"--thus making it more difficult for the other parent to go back to the old system--it is best to obtain a court order modifying custody and visitation.

In addition, an informal change of custody will not necessarily stop a parent's support obligation--only a court order can provide certainty of that.

SOURCE: FindLaw

Homosexual Relationships

The impact of a parent's homosexual relationships on custody decisions varies dramatically from state to state. Courts in many states are more willing to assume harmful impact to a child from a parent's homosexual relationship than from a heterosexual relationship. On the other hand, some states treat homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown.

A homosexual parent (or a heterosexual parent) seeking custody will have a stronger case if he or she presents evidence that the child does not witness sexual contact between the partners and that the child likes the parent's partner.

SOURCE: FindLaw

Nonmarital Sexual Relationships

The impact of a parent's nonmarital sexual relationships on a custody determination depends on the law of the state and the facts of the case. In most states, affairs or nonmarital sexual relations are not supposed to be a factor in deciding custody unless it can be shown that the relationship has harmed the child or is likely to harm the child in the future.

If, for example, one parent has had a discreet affair during the marriage, that normally would not be a significant factor in deciding custody. Similarly, if after the marriage is over, a parent lives with a person to whom he or she is not married, the live-in relationship by itself normally is not a major factor in deciding custody. In the case of live-in relationships, the quality of the relationship between the child and the live-in partner can be an important factor in a custody dispute.

If the parent's non-marital sexual relationship or relationships have placed the child in embarrassing situations or caused significant stress to the child, then the relationship would be a negative factor against the parent involved in the relationship. In one case, for example, a mother conducted an affair during her marriage with a man who lived in the neighborhood. She and the neighbor periodically were involved in the woman's bedroom while the husband was out, but the child was home.

This placed the child in a stressful situation--a situation that grew worse when the wife of the neighbor appeared at the door and demanded that the child tell her what the child's mother and neighbor were dong in the bedroom. The mother lost custody primarily because of her nonmarital relationship and its impact on the child.

Although most states require a specific showing of harm to the child before nonmarital sexual conduct is considered, courts in a few states are more inclined to automatically assume that a parent's nonmarital sexual relationship is harmful to the child or will be harmful to the child. As with the issue of a preference for mothers or fathers in custody cases, the issue of a parent's sexual conduct can be one in which individual judges may have personal biases that influence their decisions.

SOURCE: FindLaw

Child's Preferences

The wishes of a child can be an important factor in deciding custody. The weight a court gives the child's wishes will depend on the child's age, maturity, and quality of reasons. Some judges do not even listen to the preferences of a child under the age of seven and instead assume the child is too young to express an informed preference.

A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child's reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed.

On the other hand, if a child expresses a good reason related to the child's best interest--such as genuinely feeling closer one parent than the other--the court probably will follow the preference. Although most states treat a child's wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an "absolute right" to choose the parent with whom the child will live, as long as the parent is fit.

If a judge decides to talk with the child, the judge usually will do so in private--in the judge's chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents' attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychiatrist, psychologist, or social worker, to talk to the child and report to the court.

SOURCE: FindLaw

Preference for the "Primary Caretaker"

While it is true that both mothers and fathers may seek and be awarded physical custody of their child, and may agree to almost any custody arrangement out-of-court, when the issue of awarding primary physical custody is before a family court judge, preference is usually given to the parent who is the child's "primary caretaker."

The "Primary Caretaker" Standard

In custody cases, most states' family courts allow a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of marriage, or assumed that role in general if the parents are unmarried. The "primary caretaker" factor became important as psychologists began to stress the importance of the bond between a child and his or her primary caretaker. This emotional bond is said to be important to the child's successful passage through his or her developmental stages, and psychologists strongly encourage the continuation of the "primary caretaker"-child relationship, as being vital to the child's psychological stability.

How is the "Primary Caretaker" Decision Made?

When determining which parent has been the primary caretaker of a child for purposes of a custody decision, family courts focus on direct care-taking responsibilities, such as:

• Bathing, grooming, and dressing;
• Meal planning and preparation;
• Purchasing clothes and laundry responsibilities;
• Health care arrangements;
• Fostering participation in extracurricular activities;
• Teaching of reading, writing, and math skills; helping with homework;
• Conferencing with teachers; attending open houses; and
• Planning and participating with leisure activities with the child

Depending on the state where the custody determination is being made, other factors may be considered as important when determining primary caretaker status.  Even such things as exposure to second-hand smoke and volunteerism in the child's school have been considered in a primary caretaker analysis. 

If the question "who is the primary caretaker" is not easily answered, as when both parents have equally shared parenting responsibilities, courts will generally look once again to the "child's best interest" standard in determining custody.

SOURCE: FindLaw

Preferences for Mothers or Fathers

Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.

There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.

In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother it fit.

Although judges are supposed to be neutral in custody disputes between mothers and fathers, some judges appear to be biased. An advantage of having an attorney experienced in family law cases is that the attorney may know which judges may be biased and which are not. The attorney may know what types of evidence will appeal to the judge and which types will not.

In many jurisdictions, it is possible to obtain a change of judge by asking for it. Such a change often is called a change of venue. Generally, a litigant is entitled to one change of venue without having to present a reason. The request, however, must be made before the judge has ruled on substantive issues in the case. If one is faced with a judge one suspects of bias, a change of venue can be useful (although a litigant would want to consider the other judges to whom the case might be transferred and be reasonably sure than the change will not make the situation worse).

If a case is transferred to a judge who the litigant or the attorney does not like, it will be difficult to obtain a second change of venue. Courts to not wish to allow parties to keep bouncing cases between judges. Courts usually are unwilling to order a second change of venue unless there is a clear, specific showing of prejudice by the judge to whom the case has been transferred. If a parent is before a judge who is believed to be biased (and a change of venue cannot be obtained), the parent just puts on the strongest case possible and hopes for the best.