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

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

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

How to Deal with Last-Minute Visitation Issues

At this time of year, and at other times just before holidays and vacation times, it is not unusual to have conflict between parents over visitation/access with the children. A variety of circumstances can lead to the problems:

• Sometimes the existing court orders are a little vague.
• Sometimes the parents have been doing things by agreement a certain way and one of the parents decides to change things.
• Sometimes there is a special event that comes up that doesn't fit into the order or how the parents had been sharing.
• Sometimes one parent gets mad at the other and starts to use the kids as a weapon.
• Sometimes other family members interfere and create problems.
• Sometimes a work schedule or financial issues create a need to change visitation.
• Sometimes an outside opportunity comes up from school, church, friends, relatives, Scouts or other sources.
• And on and on. For any number of reasons, conflict can arise and really cause problems at holiday time.

What can be done? Here are some ideas.

1. Prevention is the best approach, if possible. Continually working and communicating with each other can help avoid major problems.

• Parents should talk early and often so they can avoid unpleasant surprises, hurt feelings and conflict. Discussing plans far in advance can help issues be resolved early or just not even become problems.
• Establishing a pattern and history of cooperation not only makes it easier to avoid conflict, but also makes it easier to deal with problems if they arise. If one parent has regularly shown a willingness to cooperate over a period of time, the other parent will probably be more willing to "give" somewhere in the future.
• Be nice. Do unto others as you would have them do unto you.
• Be flexible. Most plans can be adjusted. In the long run, you'll come out far ahead if you show flexibility and are able to change your plans sometimes. Keep in mind the big picture as far as what's in your child's best interest.
• Plan ahead. Try not to wait to the last minute to plan or implement changes in your child's schedule. Plan ahead and share the details with the other parent.
• Listen and be respectful. If you immediately start talking or arguing, you may miss some information and may jump to erroneous conclusions. Listening, just by itself, can defuse tensions. Being courteous and respectful to the other parent may be difficult, but investing in that effort can be rewarding by leading to better communication and relationships.

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

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

Child Access and Visitation Services in Georgia

Social Services are available in metropolitan Atlanta counties.

The Office of Child Support Services (OCSS) offers social services for parenting time to non-custodial parents with active cases in the following counties:

Fulton, DeKalb, Gwinnett, Clayton, or Cobb County

To apply, call Families First at 404-853-2844.  Families First is the contracted service provider for OCSS.  Please have your case number ready when you call, since the intake worker will need to verify your eligibility for the program.  These services are offered at no cost to OCSS clients.

The services provided are:

• Coordination of visitations or parenting time
• Mediation between the parents (non-legal, non-binding)
• Written parenting plans
• Group parenting education
• Counseling on access issues 

Shared Parenting Custody Calendar Software

Using a shared parenting custody calendar can help you keep track of everything important in your children's lives, including the visitation schedule and how the custody arrangement is working.  One of the easiest ways to do this is by using child custody and visitation software, such as the Custody Toolbox.

What Is The Custody Toolbox?

The custody toolbox is a child custody software program for your computer to help you keep track of everything relating to your children.  You can use it to:

Be Creative With Parenting Time and "Non-Major" Holidays -- Like Halloween

Houston family law attorney Shannon Cavers of the Houston Divorce and Family Law Attorney Blog has posted the following article about including Halloween and other "minor" holdays in custody and visitation orders (referred to in Texas as a "possession order"):

If you’re a divorced or divorcing parent you know that the Standard Possession Order addresses the “major” holidays such as Thanksgiving, Christmas, and both Mother’s and Father’s Day. However, the Standard Possession Order is blueprint from which parents and their attorneys may build a custom plan for the family. Remember, long after the ink is dried on the divorce orders, you, your child, and ex spouse have to live with the order – so take the time to ask for the things important to you.

If you have young children and you enjoy watching them dress up for Halloween and participate in carnivals or school activities, ask your attorney to include this in your parenting plan. Parents can either share responsibilities for Halloween, or trade-off Halloween just as divorced parents do with Thanksgiving (i.e., primary conservator to has child for Halloween in even numbered years, while possessory conservator has child in odd numbered years).

Over the years, many parents have asked me to add special provisions to the Standard Possession Order, such as Halloween, Easter, and special holidays for other religious groups.

SOURCE: Houston Divorce and Family Law Attorney Blog

Special Visitation Problems

Interference with Visitation

In a few states, statutes allow the court to consider in the initial custody decision which parent is likely to allow frequent and continuing contact with the other parent. Where the interference has been persistent or has involved hiding the child, the court may even transfer custody from one parent to the other. As a general rule, however, the court will not settle a dispute over visitation by transferring custody because modification may end up disrupting the child's stable home environment. Instead, the court may choose to enlarge the visitation time allotted to the noncustodial parent.

Where the noncustodial parent seeks to enforce rather than modify visitation rights, a contempt action may be brought against the custodial parent. The contempt procedure takes time and rarely accomplishes much. Courts are often reluctant to put the custodial parent in jail because of the negative effect on the child. Methods used to enforce visitation rights include contempt, the posting of a bond by the violator, and the award of attorney fees.

Relocation of Custodial Parent

Many custody orders include travel restrictions that prohibit the custodial parent from removing the child from the state. These provisions help to ensure the integrity of the parties' original agreement, to assure thoughtful consideration of the impact of any intended move, and to protect the noncustodial parent's rights to visitation. Where travel restrictions exist, the custodial parent seeking to move must obtain a modification of the original decree. The modification proceeding gives the noncustodial parent the opportunity to restructure the visitation arrangements or to file a motion for modification of custody. Even without a travel restriction, the court may find that a decree granting a noncustodial parent weekly visitation impliedly prohibits a parent from moving without going back to court.

Reasonable travel restrictions inserted in custody decrees to serve the child's best interest have been upheld against attacks that they violate the custodial parent's right to travel. Some courts have upheld restrictions limiting residence to within a state's border, but not to a particular location within the state.

One of the major arguments against allowing a move out of state is that the visitation rights of the noncustodial parent will be seriously impaired. The fact that there will be more transit time or more expenses involved with visitation does not by itself, preclude the move. Some courts weigh the benefits to the child and the custodial parent in an increased standard of living resulting from the move against the detriment caused by the reduced visitation.

Courts have increasingly given deference to the custodial parent's decision to move, so long as the reason for the move is not to defeat the other parent's visitation rights. Some states have recognized a rebuttable presumption in favor of the custodial parent's decision to relocate. If the court allows the custodial parent to move out of state, at the very least the court will have to modify the existing visitation arrangements. The most extreme remedy to ensure contact is to change custody to the parent who remains in the state.

Abuse of Visitation

If the noncustodial parent acts in derogation of the custodial parent's rights to custody, the court may restrict or suspend visitation in an appropriate case. The problem of interference with the custodial parent's rights, particularly in cases involving child snatching, has been a serious concern to both legislatures and courts. In some situations criminal proceedings, civil actions, or statutory tort actions may be brought against the offending spouse.

Withholding of Visitation or Support

Most courts refuse to let a parent use support as a tool to secure visitation because provisions for support and visitation are independent. Likewise, courts refuse to allow the custodial parent to withhold visitation to obtain support because it is in the best interests of the child to visit his or her other natural parent.

Some courts have recognized there is a relationship between nonpayment of support and withdrawal of visitation. If the custodial parent is denying visitation, the noncustodial parent may seek a modification of the support order. The courts are especially concerned in cases where the custodial parent intentionally interferes with the other parent's visitation.

In exceptional situations where a noncustodial parent willfully and intentionally refuses to pay support, the court may revoke visitation rights. In any case, civil contempt proceedings can be invoked for the failure to pay support and the failure to abide by a decree specifying visitation.

SOURCE: Lexis Nexis

When Your Children Are With The Other Parent

The following article is by Diana Mercer, Attorney-Mediator and Marsha Kline Pruett, Ph.D.:

When we write about divorce and children switching homes, most of the time the focus is on the children: what it is like for them and how to help them make smooth transitions. We forget to address the needs of the parents who are left alone at home in an empty house once the children are gone. We forget that it is often harder for the parents being left behind than it is for the children who are going to the other parent's house. It may be difficult for you when your children leave for the other parent's home for a variety of reasons: you may feel lonely, you may miss the children, you may be jealous of circumstances in the other home (a new family, a larger home, etc.), or you may not like your spouse and wish the children didn't have to be with him or her at all.

Sometimes the best thing you can do for your children is help yourself cope better. Then you can free up your energy to really focus on what your children need. And you will be less likely to impose on them your own concerns and negative feelings.

Here are some things to do or think about:

International Child Visitation

How can one parent stop the other parent from taking a child to visit a dangerous country?

How can a parent make sure that a child will be returned if the other parent takes the child to visit his or her native country?

Many international parents are justifiably becoming increasingly concerned about the answers to these questions.

New York attorney Jeremy D. Morley, of the International Family Law Blog, has just written an article - published in the July 2007 issue of The Matrimonial Strategist and now also available on his website - describing "Ten Key Tips for Parents" that he has developed as a result of handling these issues for parents around the world.

You can read it here or below.

SOURCE: International Family Law Blog

What to Do If Your Child of Divorce Doesn’t Want to Go to the Other Parent’s House

The following article is by D.K. Simoneau, author of We're Having a Tuesday.

Split-family living isn’t easy. Children of divorce often ride a roller coaster of emotions that can sometimes make even the best of divorces seem chaotic. They withdraw. They throw tantrums. They refuse to eat. They cry. They get angry. They say horrible things. Even when both parents are very involved and there is absolutely no abuse or other negative activity going on, kids go berserk. Sometimes they dig in their heels and refuse to leave one parent to go to the other parent’s house at switch time. You’re in the middle of a switch and your child refuses to go. What can you do? Here are ten ideas to keep in mind if you ever find yourself in the middle of the switch battle.

1. Don’t talk negatively about the other parent. Children tend to be natural pleasers and they don’t want to disappoint you by going over to the other side. They also may interpret some of the negative things as things to be afraid of. They may feel fear and guilt about visiting the other parent. It’s tough for a child to hear double talk, one minute you are berating your ex the next to are telling him that everything is okay and he should feel fine about going.

2. Don’t let your child think you are lonely or sad when they go to the other parent. Children don’t want their parents to be upset and might react thinking they are saving you some despair.

Child Visitation FAQ

These frequently asked questions will help you sort out your concerns about child visitation after a divorce or separation.

What does "reasonable visitation" mean?

When a court determines the visitation rights of a noncustodial parent, it usually orders "reasonable" visitation, leaving it to the parents to work out a precise schedule of time and place. This allows the parents to exercise flexibility by taking into consideration both the parents' and the children's schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times, and duration of visits. He or she isn't legally obligated to agree to any particular schedule, but judges do take note of who is and who is not flexible. If you are uncooperative merely to vex your ex, it can backfire when you need to ask the court for something in the future.

Parents have to cooperate and communicate frequently, for the reasonable visitation approach to succeed. If you suspect right off the bat that reasonable visitation won't work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you've already agreed to reasonable visitation and it isn't working out -- for example, one parent is consistently late, skips scheduled visits, or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and ask that the arrangement be changed.

What is a fixed visitation schedule?

Sometimes courts will set up a detailed visitation schedule, including the times and places for visitation with the noncustodial parent -- for example, every other weekend or every Tuesday and Thursday evening. A court will be inclined to order a fixed schedule if the hostility between the parents is so severe that the need for regular contact between them may be detrimental to the child. A fixed visitation schedule can still be generous, but it removes opportunities for one party to control the other's time and allows the children to experience predictability in an often unsettling period.

Examples of Visitation Schedules

Every state has a different approach to standard visitation. What I've included here are a couple of typical examples drawn from the court where I practice, phrased with mom as the primary custodial parent. Please don't assume I think these are necessarily the right approach for you or even that I think these are the right approach generally. I place them here just so you can get an idea what kind of provisions you may see.

When Mom and Dad Live Nearby

• The first and third full weekends of each month from 6 p.m. on Friday until 6 p.m. the following Sunday (the first weekend of a month beginning on the first Friday of each month).
• Each Christmas day from 3 p.m. until 3 p.m. on the following New Year's day.
• 31 days during the summer (to be taken between June 10 and Aug. 15), to be selected by the husband but upon written notice to the wife at least 30 days before such visitation.
• During the odd years, spring break from 9 a.m. Saturday until the following Saturday at 6 p.m.
• During the even years, Thanksgiving vacation from 6 p.m. Wednesday until Sunday at 6 p.m.
• Every other birthday of each child from 6 p.m. on said date until 8 a.m. of the following day, beginning with the next birthday.
• Every Father's Day from 9 a.m. until 6 p.m. of the same day.
• On the birthday of the husband from 3 p.m. on said date until 8 p.m. of the same day.
• At such other times as agreed upon between the parties.

Each parent shall keep the other informed of the primary residence address and telephone number where the children reside or visit.

In Custody Fights, a Hurdle for the Poor

Custody battles are rarely gentle affairs, but if you are poor, such fights can carry an added frustration: waiting months to get a court-approved visit with your own child.

In cases involving allegations of domestic violence, which are increasing, or other issues, such as drug abuse and long absenteeism, judges often require that child’s visits with the noncustodial parent take place only in the presence of a professional, like a social worker.

But when judges order supervised visitation, neither the court nor other government agencies pay for the service, a growing problem in New York City and across the nation.

Because he cannot afford to pay for supervised visitation, which routinely costs $100 an hour, Juan Manuel Fernandez, 51, of Washington Heights, said, he has not seen his two daughters, ages 6 and 11, since last October. A year ago, he said, his wife walked out, moved the girls to New Jersey, and told the court he was threatening her. He denies the accusation, but the judge in his case ruled that supervision was necessary. So now he is waiting for free supervision through a nonprofit agency, which can take months.

“It’s very hard to have to wait to see your own kids,” Mr. Fernandez said in Spanish, through a translator.

Introduction to Custody and Visitation in Georgia

The question of "What 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.

When should you have an attorney?
In the event that you have a highly volatile, hostile or contested custody issue you should seek out a lawyer to represent you. Additionally, if the other parent is using the services of an attorney, it is advisable that you also have an attorney.

Jurisdiction
Jurisdiction is the imaginary fence that separates the subjects one court hears from another. There are two types of jurisdiction: personal and subject matter. The court must have both types of jurisdiction to hear a case. Personal jurisdiction, the power to require a person to appear in court, is discussed in the Service of Process section of this Web site. To have jurisdiction over your specific custody or visitation case the court will require one of the following: [Georgia has statutory guidelines for determing custody].

• Georgia is the home state of the child (lives in state, goes to school in state) and the parent has sufficient contact with the state (works, votes, lives, pays taxes in Georgia). 

• Georgia was the child's home state within the last six months and the parent filing for custody continues to live in Georgia and the child is absent from the state because another person took them out of Georgia claiming custody. 

• The child and at least one of the parents have significant connection with Georgia (live, work, go to school here) and in Georgia there are more records and witnesses to give evidence of the child's present or future care, protection, training and personal relationships. 

• The child is physically present in Georgia and was abandoned or emergency protection is necessary (the child was threatened or subjected to abuse or neglect). 

• No other state would have jurisdiction based on 1,2,3, or 4 above. 

• Another state says Georgia has jurisdiction. 

• Child was removed from Georgia and the Uniform Child Custody Jurisdiction Act does not apply and no other state has jurisdiction, then Georgia will have jurisdiction if: 
• • Georgia was where the married couple lived, paid taxes, voted, etc., but the parents are now currently separated or divorced or Georgia was where the marriage contract was last performed. 
  • One parent is a resident of Georgia and was a resident when the child was removed. 
  • Court has personal jurisdiction over the parent who has removed the child. 

The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by Georgia, as well as the other 49 states. This act gives jurisdiction for custody cases to the location that is most closely associated with the child. Within Georgia, the Circuit Court has jurisdiction to hear child custody cases. That court has the power to override any agreement if they believe the agreement is not in the best interest of the child.

Visitation Problems in High Conflict Divorces

High conflict family law cases involve custody and visitation issues long after divorce. "[M]isplaced and escalating personal and spousal conflicts of divorcing couples"* fuel these cases.

High conflict cases can be extremely frustrating for professionals because the conflict is chronic, susceptible to flare-ups, and often irrational. In managing these cases courts have experimented with different approaches, including mediation, arbitration, parenting classes, parenting coordinators, and supervised visitation, in addition to or in lieu of litigation.

The following outline comments on the effectiveness of various methods.

8 Tips for Dealing with Denial of Access

One of the most difficult things to deal with in family law is when one parent denies access to the other. This normally occurs in one of two ways: (1) simply not dropping off the children for access or not being around when the other parent arrives to pick up the children for access; and (2) “overholding” the children - i.e. returning the children late, sometimes by an entire night. I find that it’s particularly problematic around holidays and also where parents live in different cities.

From a legal point of view, the options for dealing with this are unfortunately limited:

1. Usually your lawyer can’t do anything immediately as access changeovers often occur on or near weekends. Even if your lawyer manages to reach the other parent’s lawyer, chances are the other parent is not just denying access, but also avoiding their lawyer’s telephone calls.

2. The police generally won’t help you. Normally their excuse will be that your agreement or court order isn’t specific enough. For instance, if you have access every second weekend, it won’t be clear whether this is your access weekend or not. But even if your agreement or court order is specific, it is rare that the police will want to get involved. They’ll probably tell you to speak with your lawyer.

It’s extremely frustrating to have time and plans with your children ruined without any notice. So, what can you do? Here are my suggestions:

1. Keep your cool. If this is the first time this has happened, there may well be legitimate reasons why the other parent is delayed.

2. If you have a chance, go to court on an urgent basis to get an order directing the police to enforce the visitation order. This is a good option for a longer access period - say, if the children were to spend their spring break with you.

Research Local (and Distant) Schools Online

Ben Stevens at The South Carolina Family Law Blog, posts a nice online link for a useful resource in move away cases.

Parents are moving today more than ever.  In fact, I receive calls almost every week about these "parental relocation cases."  One of the (many) issues that the Court considers in such cases is the quality of the schools in each location. 

Fortunately, it is now easier than ever to find out necessary information about educational institutions located far away, thanks to Yahoo Real Estate.  This free service allows you to research both public and private schools in any state by city name or even by zip code.

The information provided includes contact information, enrollment, student to teacher ratio, and location on an interactive map.  There are also reports available on the school's test scores, students, and teachers.  This resource can prove extremely helpful as a starting point when a child's eduction is at issue, and I urge you to check it out.

Source:  "Find School Info With Yahoo School Search" by Wendy Boswell, publishd at LifeHacker.

Child Visitation FAQ

What does "reasonable visitation" mean?

When a court determines the visitation rights of a noncustodial parent, it usually orders "reasonable" visitation, leaving it to the parents to work out a precise schedule of time and place. This allows the parents to exercise flexibility by taking into consideration both the parents' and the children's schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times, and duration of visits. He or she isn't legally obligated to agree to any particular schedule, but judges do take note of who is and who is not flexible. If you are uncooperative merely to vex your ex, it can backfire when you need to ask the court for something in the future.

Parents have to cooperate and communicate frequently, for the reasonable visitation approach to succeed. If you suspect right off the bat that reasonable visitation won't work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you've already agreed to reasonable visitation and it isn't working out -- for example, one parent is consistently late, skips scheduled visits, or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and ask that the arrangement be changed.