Legalese — How Judges Determine Custody

Determining the custody of a child has to be one of the hardest things a judge has to do.  Strangely enough, the determination is easier when one of the parents has a problem.  When one of the parents has a history of violence or drug addiction and the other one doesn’t, it is sad for the child, but easy on the judge – give the child to the parent without those issues.  But what do you do when both parents have their own issues or neither parent has obvious issues?

Ideally, parents work it out on their own.  The state shouldn’t step into people’s families unless it has to.  But often, and especially in the heat of a divorce when emotions are high and people are not always at their most rational, the judge has to make the call.  In Georgia, the legislature has laid out relevant factors in O.C.G.A. §19-9-3(3) the court to consider in determining the best interests of a minor child in a custody determination.  I will list and discuss each one in turn.  None of these are the be-all-and-end-all, but they are all something to consider when making a decision. 

  • The love, affection, bonding, and emotional ties existing between each parent and the child;
  • The love, affection, bonding, and emotional ties existing between the child and his or her siblings;
  • 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;
  • Each parent’s knowledge and familiarity of the child and the child’s needs;
  • 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;
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • 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;    
  • 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; 
  • The mental and physical health of each parent; 
  • Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities; 
  • Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  • The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  • Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  • 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; 
  • Any recommendation by a court appointed custody evaluator or guardian ad litem; 
  • Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
  • Any evidence of substance abuse by either parent.

Bear in mind that none of these are “who is the man and who is the woman?”  Georgia law doesn’t care – and shouldn’t care – about the gender of the parent, each one stands on equal footing.

Also notice that none of these are “who has the nicer house or more money or who can send the child to private school.”  Wealth is not a factor.  So long as you can provide your child with adequate food, shelter, and clothing, it doesn’t have to be fancy.  The focus is on which parent can care for the child, which parent is available, and which parent knows the child and his or her routines.  It’s the skill set and the selfless love more than the material goods. 

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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