The Answers to your Questions about Custody Law in Georgia

Everything You Need To Know About Custody Law 

At the Law Offices of Essa, Janho & Associates, LLC. we often get questions concerning Child Custody Law. The answers listed in this article are specifically for the State of Georgia. Our Law Office (Attorney Julie M. Essa) is located in  Marietta, Georgia. We offer Flat Fees for all Family Law Cases and have over 12 years of experience with Georgia Family Law. 

Family & Divorce Law Marietta Georgia - Custody Law
Custody Law Answers for Georgia Residents

Q.) Do mothers and fathers have the same rights to custody and visitation?

A.) If the parents are married, they have equal rights to visitation and custody.

Q.) Who is entitled to custody of a child when the parents aren’t married?

A.) Under Georgia law, only the mother of a child born out of wedlock has custody rights to the child. For an unwed father to get any parental rights, including custody or visitation rights, he must file a legitimation action in court. The father and mother can also sign a voluntary acknowledgment of legitimation. A legitimation action legally recognizes that a man is the father of the child and gives the child the right to inherit from the father. As part of a legitimation action, the unwed father can also ask for custody, visitation and/or child support. Only the father is allowed to file for legitimation in court and the petition should be filed in the county where the mother and child reside.

Q.) What if the father is listed on the child’s birth certificate?

A.) Just because a father’s name is listed on the birth certificate does not give the father any legal rights to custody or visitation under Georgia law. It also does not give the child the right to inherit from the father. To have full rights as a father in Georgia, an unwed father must legitimate the child either in a court action or by signing the legitimation acknowledgment.

Q.) What if the father has been ordered to pay child support?

A.) A court order requiring the father to pay child support does not give the father any legal rights to custody or visitation.

Q.) Can parents agree on which parent shall have custody?

A.) Yes. However, the court may choose not to honor the agreement if it determines that the agreement is not in the best interest of the child.

Q.) Can a child select the parent with whom he or she wishes to live?

A.) If the child is 14 or older, 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. If 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. Parents should be careful not to put children in the position of having to choose one parent or the other parent. Normally, children love both their parents and will do all they can to avoid hurting the feelings of either parent, including telling both parents they want to live with that parent.

O.C.G.A. 19-9-3 (2010)
19-9-3. Discretion of judge in custody disputes; right of child 14 years old or older to select custodial parent; consideration of child’s educational needs; review of visitation rights; grandparent visitation; policy; retention of jurisdiction; attorney’s fees; filing of domestic relations final disposition form

Q.) What is a parenting plan and do I have to have one?

A.) Georgia law requires parenting plans in all custody or visitation cases filed after January 1, 2008. The purpose of a parenting plan is to help parents think through and set out how issues of custody and visitation should be decided. There are many requirements about what goes into a parenting plan. If parents are in agreement, they can file a joint plan, but otherwise, each parent must submit a separate plan. The Court will enter a final parenting plan order as part of the divorce decree (if married) or legitimation and custody order (if parties are not married).

Q.) Does the law favor of granting custody to the mother or the father?

A.) No. The parents are equal under the law. There is no presumption that the child should live with the mother or the father. The decision always depends upon what the judge believes will promote the best interest and welfare of the child, based on the evidence presented in court.

Q.) What factors will a judge consider when deciding which parent should have custody of the child or children?

Family and Divorce Law Matters by Julie M. Essa include Child Support and Custody Law i

A.) The judge may consider a long list of factors when deciding who should have custody of the child. Some of them are:

  • The bonding and emotional ties that exist between each parent and the child
  • The length of time the child has lived in the current home and whether that environment is stable and satisfactory
  • The mental and physical health of each parent
  • Evidence of family violence, child abuse, substance abuse or criminal history of either parent
  • The ability of each parent to meet the educational needs of the child
  • The ability of each parent to provide the child with food, clothing, and medical care
  • Each parent’s involvement in the child’s educational, social and extracurricular activities

Q.) What is the difference between physical and legal custody?

A.) There are two types of custody under Georgia law: physical and legal. Physical custody determines the parent with whom the child lives. Legal custody determines who makes major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training.

Q.) Can a judge award joint physical custody?

A.) Yes. However, a judge will normally award one parent primary physical custody.

Q.) Can a Judge award joint legal custody?

A.) Yes. In fact, judges often award joint legal custody. The law favors both parents having equal access to the child’s medical and educational information and both parents being involved in major decisions related to the child’s upbringing.

Q.) What if both parents have joint legal custody and they disagree about decisions related to the child’s upbringing?

A.) The custody order or parenting plan should explain how to handle such disagreements. The order or plan may say that if the parents disagree about an issue related to the child’s upbringing then the parent with primary physical custody will make the decision. However, a judge may also order that one parent will have sole power to make certain decisions and the other parent will have sole power to make other decisions. Another option is that the judge may order a parent to be a “tie-breaker” for each major issue when the parents cannot reach an agreement after discussing the issue.

Q.) Can one parent be awarded both physical and legal custody and the other parent be awarded neither?

A.) Yes. When only one parent has physical and legal custody rights to the child, this is called sole custody. The parent with whom the child lives have the authority to make all decisions concerning the child, except for day-to-day decisions while the child is visiting the other parent.

Custody Law Answers for Georgia

Q.) Can the court change or modify a custody decision?

A.) Yes. A new court case has to be filed stating that there has been a substantial change of circumstances that affect the interests and welfare of the child since the order was entered. If the non-custodial parent files the petition, it must be filed in the county of the custodial parent. If the custodial parent files the petition, it must be filed in the county of the non-custodial parent.

Divorce and tax liability in Georgia - Child Support does not have be claimed as income as it is merely to provide for the child/children

If you are looking for legal representation in Marietta Georgia – (Cobb County) or surrounding Atlanta Cities, please don’t hesitate to contact the Law Firm of Julie M. Essa Today. 


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*Original Article published by Attorney Sean Whitworth.

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