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Who Has the Right to Custody


July 08, 2013
Who Has the Right to Custody

Often potential clients will enter my office and pronounce "Mom always gets custody" or "Dad never gets custody of the children". In fact neither party has an automatic right of custody of the children. Under the current Georgia Law," there shall be no prima-facie right to custody of the children in the father or the mother" What that means is that when parents step into a courtroom, neither parent has automatic right to custody over the other parent. So, how does the court decide? You should know that the court looks at a number of factors to determine what is in the child's best interest, which is the standard the court uses to decide which parent will become the custodial parent. What kind of factors? The relevant statute lists several factors, among them:

(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;

The above list it is not exhaustive of all of the factors the court can consider in making its decision. Additionally, these same factors have to be applied to the facts of YOUR case, as each case is individual and differentiated by its facts.



If you are separating from your spouse or your spouse has filed for divorce and there are children involved, it important that you contact an family law attorney to discuss your custodial rights. There have been a number of significant changes Georgia family law in recent years. What you think might be "obvious" or " automatic" may not be as obvious or automatic as you might think. Make sure that you inquire about custody rights in relationship to your individual family situation before entering the courtroom.

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