Georgia Family Law Blog: Family Law Legislation

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

Georgia Divorced Parents Face Major Law Change

WSB-TV has a video of their report on the change in Georgia law regarding the choice of 14 year olds, which was passed in the Georgia General Assembly in 2007 and becomes effective for cases filed after January 1, 2008. Here is the link.

SOURCE: WSB TV.com

Reposting of Links to Articles on HB 369

With the approach of January 1, 2008, the date when most of the provisions of the Georgia Shared Parenting Bill, formerly known as House Bill 369 (HTML version) (PDF version), will go into effect, I wanted to repost links to my detailed analysis of the bill, which appeared in a series of posts in May (the links to those posts are listed below):

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

Posted at 01:16 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Governor Perdue Signs House Bill 369 Into Law

I have confirmed through another source that Governor Sonny Perdue has signed HB 369, the Shared Parenting bill, into law on May 29, 2007. The provisions of the bill will go into effect and will apply to any action to establish or modify provisions for custody, visitation or parenting time filed on or after January 1, 2008.

SOURCE: Rome News-Tribune

Posted at 10:21 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Governor Perdue Signs Bills Into Law

Tuesday, May 29, 2007

ATLANTA – Governor Sonny Perdue today announced the signing of the following legislation into law. For more information on this legislation, please visit www.legis.ga.gov.

SB 17
SB 40
SB 96
SB 102
SB 194
SB 226

HB 90
HB 369

SOURCE: Governor Sonny Perdue

Posted at 04:39 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

House Bill 369 expected to be signed next week

It is expected that Governor Sonny Purdue will sign House Bill 369, the Georgia Shared Parenting Bill, into law next Thursday, May 31, 2007.

Posted at 03:13 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

One Good Thing: A Comment on House Bill 369

Amy Morton, at the political blog Tondee's Tavern, had the following comment on House Bill 369, which awaits the Governor's signature before it can become law:

Right now, in Georgia, we don't let fourteen year olds drive, buy cigarettes or drink alcohol, but if their parents are divorced, we let them decide with which parent they wish to live.

Basically, if a fourteen year old elects to live with a given parent, they can do that unless the parent is deemed unfit. Children as young as 11 have some say so in the matter. While this might seem like a good idea, usually, it's not.

As a family therapist, I see children as young as six struggle with the burden of one day having to "pick" between their parents. How do they know? Their parents tell them. I have watched some parents "work on" children for years, lobbying for the child to "pick them." Yes, it is emotional abuse, but it happens all the time. And, of course, there are no fourteen year olds who would simply choose to live with the parent who gave them greater freedom, or promised the cool car.

If the Governor signs HB 369, then this, along with a lot of other things about child custody, would change. While this bill is not "all good," I am thrilled to see some common sense revisions to the current "election" provisions for teens. Under the new law, teens would still have the right to elect, but the court could consider "the best interest" of the child, and teens could only make such an election once every two years-possibly curbing revolving door parenting. This is one good thing that came out of this otherwise horrible session.

SOURCE: Tondee's Tavern

Posted at 04:44 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Effective Date

Section 8 of HB 369 proides the effective date for the new law. "This Act shall become effective on January 1, 2008, and shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008."

The standards currently in effect, such as the current binding provisions on the fourteen year old election, will apply to any cases filed before January 1, 2008.

Posted at 05:17 PM in Family Law Legislation | Permalink | Comments (1) | TrackBack (0)

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

In OCGA section 19-9-7, the bill also added “parenting time” as an alternative to the term “visitation,” in the prior statute dealing with the impact of family violence on visitation. The restrcitions, such as supervised visitation, were in the prior version of the statute. The current versions reads as follows:

“(a) A judge may award visitation or parenting time to a parent who committed one or more acts involving family violence only if the judge finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made. In a visitation or parenting time order, a judge may:

(1) Order an exchange of a child to occur in a protected setting;
(2) Order visitation or parenting time supervised by another person or agency;
(3) Order the perpetrator of family violence to attend and complete, to the satisfaction of the judge, a certified family violence intervention program for perpetrators as defined in Article 1A of Chapter 13 of this title as a condition of the visitation or parenting time;
(4) Order the perpetrator of family violence to abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance listed in Code Section 16-13-25 during the visitation or parenting time and for 24 hours preceding the visitation or parenting time;
(5) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation or parenting time;
(6) Prohibit overnight visitation or parenting time;
(7) Require a bond from the perpetrator of family violence for the return and safety of the child; and
(8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or another family or household member.

(b) Whether or not visitation or parenting time is allowed, the judge may order the address of the child and the victim of family violence to be kept confidential.

(c) The judge shall not order an adult who is a victim of family violence to attend joint counseling with the perpetrator of family violence as a condition of receiving custody of a child or as a condition of visitation or parenting time.

(d) If a judge allows a family or household member to supervise visitation or parenting time, the judge shall establish conditions to be followed during visitation or parenting time."

Posted at 05:14 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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

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 section 19-9-6 received a few changes. The most notable was to add to the list of decisions included under joint legal custody was extarcurricular activities. The term "parenting time" was also added as an alternative to the term "visitation." The statue now reads as follows:

"As used in this article, the term:

(1) 'Joint custody' means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody.

(2) 'Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child´s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

(3) 'Joint physical custody' means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.

(4) 'Sole custody' means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child´s education, health care, extracurricular activities, and religious training, and the noncustodial parent shall have the right to visitation or parenting time. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights or parenting time."

Posted at 05:07 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Custody Agreements

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 section 19-9-5 also had minor stylistic changes made. It deals with the parties’ ability to agree on custody matters and the court’s ability (and responsibility) to review and approve, where appropriate, those agreements:

“(a) In all proceedings under this article between parents, it shall be expressly permissible for the parents of a child to present to the judge an agreement respecting any and all issues concerning custody of the child. As used in this Code section, the term 'custody' shall include, without limitation, joint custody as such term is defined in Code Section 19-9-6. As used in this Code section, the term 'custody' shall not include payment of child support.

(b) The judge shall ratify the agreement and make such agreement a part of the judge´s final judgment in the proceedings unless the judge makes specific written factual findings as a part of the final judgment that under the circumstances of the parents and the child in such agreement that the agreement would not be in the best interests of the child. The judge shall not refuse to ratify such agreement and to make such agreement a part of the final judgment based solely upon the parents´ choice to use joint custody as a part of such agreement.

(c) In his or her judgment, the judge may supplement the agreement on issues not covered by such agreement.”

Posted at 04:57 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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

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.

Minor changes were made to OCGA section 19-9-4, which authorizes the judge in a custody case to order a home study investigation by the Department of Family and Children Services (DFCS) in cases involving specific claims of abuse, neglect or other harm to the child. It provides now as follows:

“(a) On motion of either party in any action or proceeding involving determination of the award of child custody between parents of the child, when such motion contains a specific recitation of actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child, the judge may direct the appropriate family and children services agency or any other appropriate entity to investigate the home life and home environment of each of the parents. In any action or proceeding involving determination of the award of child custody between parents of the child when during such proceedings a specific recitation of actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child has been made the court judge shall also have authority on his or her own motion to order such an investigation if in the judge´s opinion the investigation would be useful in determining placement or custody of the child. The judge may also direct either party to pay to the agency the reasonable cost, or any portion thereof, of the investigation. The report of the investigation will be made to the court judge directing the investigation. Any report made at the direction of the judge shall be made available to either or both parties for a reasonable period of time prior to the proceedings at which any temporary or permanent custody is to be determined. Both parties shall have the right to confront and cross-examine the person or persons who conducted the investigation or compiled the report if adequate and legal notice is given.

(b) This Code section shall apply only with respect to actions or proceedings in which the issue of child custody is contested; and this Code section is not intended to alter or repeal Code Sections 49-5-40 through 49-5-44.”

Posted at 04:53 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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.”

Posted at 03:54 PM in Attorney's Fees, Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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.”

Posted at 03:48 PM in Child Custody, Family Law Legislation, Relocation | Permalink | Comments (0) | TrackBack (0)

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

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 (a)(8) of OCGA section 19-9-3 is new and provides: “If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge´s decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child´s education, health, extracurricular activities, religion, and any other important matter shall be decided. Such order shall be filed within 30 days of the final hearing in the custody case, unless extended by order of the judge with the agreement of the parties.”

The legislature is requiring judges in family law matters now to make detailed findings to support child support determinations, after last year’s new child support guidelines went into effect and now, if requested, in custody cases, to explain the reasons for a custody determination.

Posted at 12:05 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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

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 (a)(7) of OCGA section 19-9-3 is the former subsection 6 and continues to provide that: “The judge is authorized to order a psychological custody evaluation of the family or an independent medical evaluation. In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith.”

Posted at 12:03 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Custodial Preferences of 11 to 14 Year Old 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 (a)(6) of the new version of OCGA section 19-9-3 addresses the selection made by children who are between the ages of 11 and 14.

“In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child´s desires shall not be controlling. The judge shall further have broad discretion as to how the child´s desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.”

Posted at 12:01 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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

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 provisions on whether a child fourteen years of age or older could continue to choose which parent he or she would live with was one of the most hotly debated portions of the bill. Prior articles on the subject can be found here and here.

Subsection (a)(5) of the new version of OCGA section 19-9-3 deals with the right of children 14 years or older to elect their custodial parent. As originally introduced, the bill would have abolished this right of election. However, the right re-emerged in a subsequent version, and in the bill as passed, some vestige of the right still exists, although it has been changed to some degree.

The law now provides that: “In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child´s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.”

Previously, the selection of the 14 year old or older child was controlling on the court absent a finding of unfitness of the selected parent. Now it is presumptive unless the selected parent is determined not to be in the best interests of the child. New to the statute is the provision that the selection alone is a basis for modification of custody but that the selection may not be made more often than once every two years. Considering there is only a four year window between the ages of 14 and 18, as a practical matter, this allows for the possibility of only two changes of custody based on the election.

Posted at 11:13 AM in Family Law Legislation | Permalink | Comments (1) | TrackBack (0)

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

There is also added to OCGA section 19-9-3 a new subsection (a)(4), listing additional factors a judge may consider in a custody case in which the judge has made a finding of family violence:

(A) The judge 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 judge 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 for the purposes of custody determination; and
(D) The judge 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 judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.

Posted at 11:07 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Best Interest Standard

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 (a)(2) of OCGA section 19-9-3 provides that the judge hearing the issue of custody shall (no longer “may”) make a determination of custody of a child. As before, custody matters are not to be decided by a jury. The judge may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child should be awarded. The duty of the judge in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child and what will best promote the child´s welfare and happiness and to make his or her award accordingly.

The best interest standard has been the one applied by courts in Georgia before now, but the statute now provides a list of specific factors in subsection (a)(3):

In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
(D) Each parent´s knowledge and familiarity of the child and the child´s needs;
(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) The importance of continuity in the child´s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(H) The stability of the family unit of each of the parents and the presence or absence of each parent´s support systems within the community to benefit the child;
(I) The mental and physical health of each parent;
(J) Each parent´s involvement, or lack thereof, in the child´s education, social, and extracurricular activities;
(K) Each parent´s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent´s past performance and relative abilities for future performance of parenting responsibilities;
(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.

Posted at 11:06 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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

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 section 19-9-3 was also substantially rewritten.

Subsection (a)(1) provides, as before, that in all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie (automatic) right to the custody of the child in either the father or the mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.

Posted at 11:03 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

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.

Posted at 11:01 AM in Arbitration, Child Custody, Family Law Legislation | Permalink | Comments (1) | TrackBack (0)

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.

Posted at 10:56 AM in Child Custody, Family Law Legislation, Parenting Plans | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Appeals

Sections 2 and 3 of HB 369 deal with the area of appeals. I have previously posted on these features of the bill here.

Prior to the passage of this bill, for many years in Georgia, family law cases have been, for the most part, subject to discretionary appeals procedures. That is, if a litigant wanted to appeal a decision in a divorce or child custody case, he or she typically had to file an application for appeal, requesting permission for the appellate court to appeal. Parties in other types of civil cases were allowed to appeal automatically (these cases were called “direct appeal” cases).

There has been an effort so several years to restore the rights of direct appeal in family law cases. Section 2 of the bill makes an inroad on that effort by providing that “All judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders" are now directly appealable. Section 3 provides a corresponding deletion of child custody cases from those which must be appealed, if at all, only by application, as well as adding to that list of discretionary appeals, “Appeals from orders terminating parental rights.”

Posted at 10:53 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Public Policy Statement

Section 1 of House Bill 369 includes a statement of public policy. Many statutes include such a statement to assist courts in interpreting the law later.

It is expressly declared in HB 369 that it is the public policy of the State of Georgia to "assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship.”

Posted at 10:39 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

An Analysis of Georgia House Bill 369: Introduction

Now that all of the legislative wrangling is over for the year, and the General Assembly has passed a final version of House Bill 369 (HTML version) (PDF version), to which I have referred previously as the Georgia Shared Parenting Bill, which now awaits the Governor’s signature, I wanted to provide a detailed analysis of the bill, which will appear in a series of subsequent posts (the links to those posts are listed below):

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

As is typical of most legislation, the bill went through several versions. The links will take you to the different versions of the bill as it proceeded through the legislative "sausage maker."

1. Introduced in the House on February 10, 2007

2. The House Judiciary Committee offered a substitute on February 27, 2007

3. The House Rules Committee offered another substitute, which the House voted to pass on March 27, 2007, by a vote of 165-2.

4. The Senate Judiciary Committee offered a substitute on April 16, 2007.

5. When the bill came up for a vote in the Senate on April 19, 2007, a floor amendment was proposed by Sen. Seabaugh. The amendment was approved 28-20 and the bill passed by a vote of 31-19.

6. The House voted to strip the Senate’s amendment and passed the bill 138-1. The Senate voted to approve the bill as amended by the House by a vote of 43-0.

UPDATE May 29, 2007: Signed by Governor

Posted at 10:25 AM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

House Bill 369 Passed: House abandons 120-day divorce waiting period

By SONJI JACOBS
The Atlanta Journal-Constitution
Published on: 04/20/07

The Georgia House, once again, has balked on a proposal that would require a couple with children to wait 120 days before they could obtain a final decree of divorce.

The state Senate late Thursday attached the four-month waiting period proposal for divorce to House Bill 369, a measure on child custody proceedings.

The Senate amendment also would require a divorcing couple with children to attend an education workshop on the effects of divorce on children led by marriage and family therapist, social worker or professional counselor.

Sen. Mitch Seabaugh (R-Sharpsburg) has pushed for a longer waiting period for divorcing couples with children for the past two years. The measure cleared the Senate in 2005, but did not clear the House last year.

"This legislation is the right thing to do four our kids and for couples, and it's the fiscally responsible way to address some of our most pressing social needs," Seabaugh told the Senate Thursday. "This is not about ideology or political parties, it's about human well-being and the common good."

But lawmakers in the House stripped Seabaugh's divorce proposal before passing HB 369 by a vote of 138-1 on Friday afternoon. The Senate approved HB 369 without the divorce amendment. Georgia law now requires a 30-day waiting period to obtain an uncontested divorce.

SOURCE: Atlanta Journal-Constitution

Posted at 09:53 PM in Child Custody, Divorce, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Georgia House Bill 369 Approved Again By House

The Sharing Parenting Bill, HB 369, has come back up for a vote by the Georgia House after having been passed with amendments last night. Rep. Rice moved that the House insist on the bill as passed and as approved by the Senate Judiciary Committee, which would remove the Senate Amendment adding the 120 day divorce waiting period, apparently by agreement. The House voted 138-1 in favor of the Senate Substitute, as amended by the House, to approve the bill.

Posted at 01:53 PM in Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Divorce measure clears Senate

By SONJI JACOBS
The Atlanta Journal-Constitution
Published on: 04/20/07

A proposal that would require couples with children to separate for at least 120 days before obtaining a final decree of divorce cleared the state Senate late Thursday.

The couple also would be required to attend an education workshop on the effects of divorce on children.

"We cannot solve this problem on our own," said Sen. Mitch Seabaugh (R-Sharpsburg), the sponsor of the proposal. "But we can take appropriate steps; we can play our part in reducing family breakdown."

Seabaugh crafted his proposal for extended waiting times as an amendment to House Bill 369, a measure on child custody proceedings. The 120-day separation period could take place before filing for divorce or after. Georgia law now requires a 30-day waiting period to obtain an uncontested divorce.

The amendment passed 31-19. HB 369, with the divorce amendment, now goes back the House for approval.

SOURCE: Atlanta Journal-Constitution

Posted at 10:13 AM in Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Georgia Senate's Floor Amendment to HB 369

As I mentioned in my post from last night after the Senate passed House Bill 369, the Shared Parenting bill, there was an amendment proposed on the floor and approved. There are essentially two elements to this amendment:

1. The amendment requires divorcing parents of minor children to attend a four hour seminar on how divorce affects children, focusing substantially on the potential impact of separation or divorce on children. These programs are already in place in many counties, such as my home county of Cobb, and are requirements in those counties before a divorce can be granted.

There are exceptions to the requirement if:

(1) Service of process was satisfied by publication and the whereabouts of one of the parties cannot be determined;
(2) One of the parties to the marriage at the time of the action is serving a sentence in the Department of Corrections;
(3) The youngest child of the parties is within six months of his or her eighteenth birthday;
(4) One of the parties to the proceeding does not live in this state; or
(5) The parties have been living separate and apart for more than five years

2. The amendment requires a waiting period of 120 days from the date of service in divorce cases where the parties are parents of minor children. This is similar to a bill proposed last year, about which I wrote in my prior family law blog. This requirement may be waived by the Court under certain circumstances where there has been family violence.

Posted at 10:09 AM in Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

House Bill 369 Passes Senate Vote

By a vote of 31-19, the Georgia Senate has just passed House Bill 369, the Shared Parenting Bill. Because there were changes in the Judiciary Committee Substitute and a floor amendment approved, the bill differs from the one approved by the House of Representatives on March 27, 2007, so the House will have to consider it on April 20, 2007, the final day of the 2007 session, for enactment this year.

Posted at 09:14 PM in Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Georgia HB 369 Status Update

On April 16, 2007, House Bill 369, the Shared Parenting bill pending in the Georgia General Assembly, was approved by the Senate Judiciary Committee and has been read on the floor a second time, setting up a likely vote on the bill later this week. The General Assembly is expected to adjourn on Friday, April 20.

Posted at 01:55 PM in Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Bill would let kids as young as 14 'ship out'

I have posted a number articles (see Parenting Plans Under HB 369, Fourteen Year Old Election Revived in House Bill 369, Factors for Custody in Georgia's Proposed Shared Parenting Bill, Georgia House Votes to Pass Shared Parenting Bill, Georgia House Shared Parenting Study Committee Report, Features of Pending Shared Parenting Bill, Another battle under way over state's divorce laws, and Shared Custody Bill Introduced in Georgia Legislature about House Bill 369, the Shared Custody bill. The Atlanta Journal and Constitution published the following op-ed piece by Casandra S. Minichiello, the vice president of Georgians for Child Support Reform, www.gachildsupport.org.

"Either shape up or ship out," said my mother as she stood at the door to my messy room. Her authoritive tone was enough to cause me to jump to attention, respond with a nod and a "Yes Ma'am" and start cleaning up the mess.

At the age of 13, I had already begun counting down to my adolescent milestones, such as a driver's license, high school, a job and college.

When I was mad at my mother, I focused on the milestone of turning 18, the point at which I no longer had to "shape up" because then I could "ship out."

Twenty years later, I am the divorced mother of my own adolescent "bundle of joy," who primarily lives with her father. If my daughter followed the Georgia Legislature, she would see that a bill now under review would allow children starting at age 14 to "ship out" —- move in with the other parent and make the choice to minimize contact with their former custodial parent.

House Bill 369 deals with many aspects of child custody issues. Many of the changes within the bill are welcome by parents, such as being able to directly appeal a judge's decision. However, the provision to allow 14-year-olds to decide when and how much they visit a parent should be removed.

As vice-president of Georgians for Child Support Reform, a grassroots organization whose motto is "Children deserve both parents," I have witnessed how laws can be used as weapons against former partners. Some divorcing parents don't put their children's best interests first. Instead, agendas become guided by revenge tactics.

Calendars become filled with pending court dates instead of soccer games, and money saved for a child's college fund now pays for an Ivy League education for a lawyer's child.

The battling doesn't end when the judge's signature dries on a divorce decree. Nothing is truly final because either parent can bring the other parent back to court to change child support, visitation or custody.

For parents who thrive on revenge, the proposal to give 14-year-olds the power to affect visitation could foster further conflict and possible manipulation of the child.

Adolescents are suddenly able to put their parents at their mercy for fear of the child "denying" one parent over the other.

If we allow our children to make these types of adult decisions at such young ages, where do we stop?

I remember being a teenager. There were many times that I would have "shipped out" rather than followed the rules set forth by my parents. However, I had to wait for that magical adult age of 18.

If the current version of House Bill 369 becomes law, the tender age of 14 may become the new age of adulthood.

Posted at 08:40 AM in Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Parenting Plans Under HB 369

If House Bill 369, the Georgia Shared Parenting Bill, becomes law, parents in cases involving custody of their children will be required to present parenting plans to the Court. The bill's language regarding the elements of a parenting plan are listed below:

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 child́s best interest;

(B) A recognition that the child́s 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 parent́s 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 parent́s right to access education, health, extracurricular activity, and religious information regarding the child.

(c) If the parties cannot reach agreement on a permanent parenting plan, each party shall file and serve a proposed parenting plan on or before the date set by the 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.

Posted at 10:07 AM in Child Custody, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Appeals Rights Under House Bill 369

Georgia law currently provides that appeals in family law cases are, for the most part, discretionary and must be filed by application seeking permission from the appellate court to appeal the order of the trial court. The Supreme Court of Georgia has attempted to address criticism of this rule (and to blunt eforts to restore the right of direct appeal in such cases) by its Domestic Relations Pilot Project (which has been extended to June 30, 2007), under which the Court will automaticaly accept all discretionary appeals in domestic relations cases which are not frivolous.

The efforts in the legislature to restore direct appeals in these very important cases has continued, though.

In SB 382 as introduced in 2006, the right of direct appeal would have been restored, but the appeals provisiosn were removed on the last day of the session in order to obtain passage of the Child Support Guidelines legislation.

In 2007, the issue has come forward again. In HB 369, as originaly introduced, to the list of cases which could be directly appealed was added:

All judgments or orders in divorce, alimony, child custody, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony, awarding or refusing to change child custody, or holding or declining to hold persons in contempt of such alimony or child custody judgment or orders."

In the bill which was passed, as a Rules Committee substitute, on March 27, 2007, this language survived, at least as to cases involving child custody. Other domestic relations typoes of cases remain subject to discretionary appeal procedures. Interestingly enough, the right to appeal orders terminating parental rights was also newly included in the list of cases requiring an application for appeal.

Posted at 09:47 AM in Appeals, Family Law Legislation | Permalink | Comments (0) | TrackBack (0)

Fourteen Year Old Election Revived in House Bill 369

One element of the Georgia Shared Parenting Bill, HB 369, as it was originally drafted was to eliminate the right of children 14 years or older to select their custodial parent. Under current Georgia law, that election is binding on the court unless the selected parent is found to be unfit. In the bill passed by the House on March 28, 2007, a Rules Committee substitute, that provision was removed and the election language was reinstated.

In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live and shall have the right to determine his or her visitation schedule or parenting time with the noncustodial parent. The child´s selection for purposes of custody, visitation, or parenting time shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such se

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