How can I get rights to my child and see her?

April 12, 2017

Where an unmarried father considers a child to be his own, visits with her, cares for her and helps raise her financially, emotionally and otherwise, unless he has “legitimated”, the State of Georgia does not legally recognize the relationship as that of legal father and child.  This means that the child could not currently inherit from the father if he died without a will naming her as his beneficiary and the father could not inherit from his child under laws of inheritance and intestacy.  That is, the State of Georgia only recognizes the mother as a child’s legal parent where the father has not legitimated and was never married to the mother.  The mother in this situation is authorized by Georgia law to exercise all parental power over the child.  To gain custody and visitation rights to his child, an unmarried father must file a “Petition for Legitimation” in superior court (although in DFCS-involved cases a father may file it in juvenile court to obtain temporary custody while the mother works her case plan; even then, to obtain any permanent custody/visitation rights he must go to superior court).  The superior court hearing his legitimation action will first determine if the father has “abandoned his opportunity interest” to develop a relationship with his child. If it finds that the father has abandoned his opportunity interest, it could simply deny the petition and end the case.

To establish that he has not abandoned his opportunity interest,  a father can show the court that:

  1. He has been actively involved in his child’s lives since birth;
  2. He has consistently provided financial and other support to his child;
  3. He has maintained contact with his child through visits, child care, phone calls, etc.

Once the superior court makes a determination that a father had not abandoned his opportunity interest, it would then apply one of two tests, depending on the circumstances, “best interests” or “parental fitness”.  A “parental fitness” test provides a legitimating father with greater due process/constitutional protections, because when a superior court looks at “best interests” of the child, it will hear from foster parents, prospective adoptive parents, the stepfather, if any, and others.

Once a father legitimates his child, he stands in the same position as any other legal parent and has a claim to parental and custodial rights in the child.  Where custody of a child has never been ruled on by a court, after a biological father has legitimated his child and seeks custody of the child, the superior court must apply a “best interest of the child” standard under O.C.G.A. §19-9-3 to evaluate the father’s claim for physical and/or legal custody of the child. This is done without a jury, and the superior court judge is to exercise his or her discretion, look to and determine solely what is in the child’s best interest, and what will best promote the child’s happiness and welfare.  Under Georgia’s “best interest” child custody statute, there is no presumption in favor of a certain kind of custody, or of custody in the mother or the father. The superior court can consider and award sole custody, joint legal custody and/or joint physical custody. These different types of custody are explained in another post.


The relative pros and cons of VR versus termination of rights

April 12, 2017

Surrendering rights or voluntarily relinquishing them, referred to as “VR”, or having them terminated, offers a parent slightly different pros and cons:

  • A surrender is less harmful than a termination, but only just by the slimmest of legal definitions.  The judge still has to accept the surrender and sign a termination order.  Therefore, it can be said that the parent was “terminated.”
  • In a surrender, the parent waives the right to appeal; if a parent loses a termination, she can appeal and there is beginning to exist some very helpful case law on “harm”, “best interests” and even technical, picky language in the TPR order that may be grounds for a reversal or at least a remand back to the trial court.
  • A TPR requires a finding of unfitness, whereas a voluntary surrender has no such finding.
  • A voluntary surrender, though usable against a parent, is no grounds for a later alleged dependency in and of itself as to any later children of the parent.  It can be grounds for an investigation, but not probable cause for dependency.
  • Some say that it rarely makes a difference whether a parent’s rights are terminated or voluntarily surrendered.  Either way, if future children become entangled in DFCS, the fact that the parent no longer has custody of child(ren) that were in care will be used against them.
  • Some say that the only good side to a voluntary surrender is that a parent can use it to try to  secure future contact (whether via letters, pictures, telephone calls, whatever the case may be).  A post-adoption contact agreement would be key to safeguarding such contact.
  • DFCS can use a TPR order as a basis to investigate if the parent gives birth again, but it would need current dependency as to the new child to actually remove and case law makes clear that just because a parent’s rights to another child were terminated does not by itself mean dependency for a later child, particularly if a parent has rehabilitated the causes of removal, dependency and termination of the earlier child.
  • If a later child was found dependent, the code suggests that a voluntary surrender would be deemed “aggravated circumstances” and/or “abandonment” as reasons that DFCS could refuse to propose a reunification case plan to a parent and go straight towards non-reunification and adoption  upon removal of another child because of language pertaining to “any other conduct evidencing an intent to relinquish parental duties”.

Should I surrender parental rights or wait until the State terminates my rights?

April 12, 2017

A parent who has been trying to reunify with his or her child and regain custody from DFCS may end up facing the difficult decision of voluntarily surrendering his or her parental rights or going through with a contested termination of parental rights hearing.  In a successful surrender of parental rights, often referred to as a “VR” or “voluntary relinquishment”, a parent offers to surrender via certain paperwork, and DFCS accepts the offer.  The paperwork can be signed out of court, in which case the parent would have 10 calendar days to withdraw in writing the surrender, or it can be signed in court and the parent can waive or give away his or her right to the 10-day withdrawal (also called “revocation”) of the surrender.  Even where a parent has surrendered his or rights, he or she may still be obligated to pay child support until his or her child is adopted.  When DFCS knows that a parent has no intention of paying child support, it can refuse to accept the surrender, and can proceed with an involuntary termination of parental rights.  If a parent’s offer to surrender parental rights is accepted by DFCS, the parent cannot appeal the voluntary surrender because it is in effect an agreement, or contract, which waives rights of appeal.  At a contested termination of parental rights, or “TPR” hearing, the judge will hear testimony and consider evidence on whether any of the statutory grounds for termination exists and if termination is in the child’s best interests.  DFCS will have the burden of proof to show both by the “clear and convincing evidence” standard, which is higher than 51% but lower than 99%.

Once the Department files a TPR petition, a parent cannot voluntarily surrender his or her child except she may consent to a judgment terminating her parental rights and execute an act of surrender in favor of the Department or into a third party if all the parties to the petition (including her children) agree.  When a parent consents to a judgment, she loses the right to appeal such judgment.

When a TPR order is issued by a court, the parent is not entitled to any notice of proceedings for the child’s adoption and has no right to object to the adoption.  The legal relationships between the child and her parent, siblings and other relatives are severed by a final order of adoption.  Thereafter, the law does not recognize them as family, and considers them legal strangers.  That is, a terminated or surrendered parent is like a stranger to the child and can be excluded from contact by the adoptive parent just like any other stranger.  While “post-adoption contact agreements” are now recognized in Georgia, they are voluntary and an adoptive parent does not have to enter into one.

Additional pros and cons of surrendering rights versus having them terminated are outline in another post.

DFCS wants my relative to have permanent guardianship of my child. What is that?

April 12, 2017

Sometimes, depending on the age of the child, the circumstances of a family trying to regain custody from the State (DFCS) and other factors, a “permanent guardianship” may be proposed in lieu of terminating parental rights and adoption.  A Permanent Guardianship is when someone gets custody of a child from juvenile court until the child turns 18 (or is legally emancipated earlier).  The parents do not lose or have to give up parental rights, but may have to pay child support.  Visitation would be whatever the Permanent Guardianship order states, and, if the order is silent, would be up to the Permanent Guardian.  Permanent Guardianship gives the parent the opportunity to maintain parental contact, and provide child support and other family connections, while providing the child with permanency. The Permanent Guardian is basically the child’s stand-in parent until the child is considered an adult under Georgia law and is legally required to provide for the child’s physical, spiritual, and mental needs through age 18 and has the right to register the child for school, obtain medical care, and provide legal consent when needed.  Under the juvenile code, a petition for permanent guardianship must recite, among other things, that reasonable efforts to reunite the child with her parent(s) would be detrimental to her, termination of parental rights is not in her best interests and the proposed guardian can provide a safe and permanent home for the child.  Children 14 and over have a say in who is to become their Permanent Guardian, so long as a permanent guardianship is in the child’s best interests and the proposed guardian chosen by the child is the most appropriate person, taking into consideration her best interests.

Once a child has a Permanent Guardian, her DFCS case is closed and she is not in the custody of the State. Permanent Guardians may be entitled to public assistance such as TANF (Temporary Aid to Needy Families), food stamps and Medicaid. A permanent guardianship can be modified, vacated or revoked by showing one of two things by clear and convincing evidence:  (1) a material change in the circumstances of the child or in the guardian and (2) modification, vacation or revocation of the guardianship and appointment of a new guardian is in the child’s best interests.  “Clear and convincing evidence” is a higher burden of proof than a preponderance of the evidence and lower than “beyond a reasonable doubt”.

My ex-wife wants to move out of state and take our children. Can I stop her?

April 12, 2017

Before 2003, the general rule in “relocation” custody cases was that when a custodial parent relocated, or moved out of the State of Georgia, he or she had a “prima facie right” to retain custody of the children, unless the noncustodial parent showed that the proposed relocation endangered the children’s physical, mental or emotional well-being.  A “prima facie right” is a right that can be outweighed by other considerations, sort of like a rebuttable presumption.  So in other words, the former rule was that the parent who had won primary physical custody during an earlier divorce could move out of state and would get to keep that custody, unless the noncustodial parent showed that the move would harm the children’s health, mental health or well-being.

In 2003, the Georgia Supreme court overturned that rule and prior case law that stood for it and stated a new rule: “When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test. This means that an initial custodial award will not always control after any ‘new and material change in circumstances that affects the child’ is considered.”  Thus, relocation cases are now treated as modification of custody cases, which are discussed in another post.


The court just appointed a guardian ad litem in my divorce or custody case. Now what?

April 12, 2017

To assist the court in making rulings on custody and visitation in a contested divorce, modification, guardianship or other case involving custody of a minor child, it may appoint – on its own or at the request of the parties – a “guardian ad litem” or “GAL”.  A GAL is treated by the law as an officer of the court and serves the child(ren)’s best interests during the course of the litigation.  The GAL essentially is the eyes and ears of the trial court judge who will be making the custody and visitation rulings, and in that role, he or she meets with the parents, the child(ren), perhaps the child(ren)’s teachers, family friends and other relevant collateral witnesses who have first-hand knowledge of how each parent interacts with the child(ren).  The GAL may also collect school records, medical, dental and/or mental health records, conduct internet research on the parents and things the parents tell him or her and will want to observe each parent interacting with the child(ren) and often do so more than once, depending on the length of time he or she has for the investigation, whether there are any delays in getting the custody and visitation issues to a final hearing and whether there are any new developments or concerns he or she needs to investigate after making his or her initial custody and visitation recommendations.  The GAL does not represent the child(ren), just the child(ren)’s “best interests”.  While the GAL will want to know the child(ren)’s wishes, that is not the end of the matter, because even when a child is old enough to “elect” or choose which parent he or she wants to live with, the court may not issue a custody order that goes along with the child’s wishes, because custody and visitation rulings are always informed by what is in the child(ren)’s best interests.

Modification of Custody

April 12, 2017

If you want to change a prior child custody order to increase or decrease the amount of parenting time you have with your children, or try to become the sole or primary physical custodian, you will need to file a court action called a “Petition for Modification of Custody”.  You may also seek to have a prior child support order modified through the same court action, in which case you would call it a “Petition to Modify Child Support and Custody” or something similar.  To try to get a court order changing custody in some way, you would have to prove that a “new and material change in circumstances” affects your child(ren).  The material change need not be for the worse and it can be a material change in you, your child(ren)’s other parent or your child(ren).  Some examples might include a child’s health condition, a parental health condition, changes in work or travel schedules, a relocation, a child’s academic needs, etc.  It can also be based on the custodial parent’s repeated denials of visitation with the noncustodial parent.

Once the court has determined that a material change of circumstances has occurred, it must consider whether modifying the prior custody award is in your child(ren)’s best interests, and will look to the “best interest factors” listed in O.C.G.A. §19-9-3(a)(3).  Child custody rulings are made by a trial court judge, not a jury.   Sometimes a guardian ad litem is appointed by the court or requested by one or both parties to conduct an investigation into the family and makes recommendations to the court to assist it in making custody and visitation rulings.  A guardian ad litem, or GAL, is an officer of the court (but often a private attorney) who represents the child’s best interests during the litigation.  GAL’s are discussed at more length in another post.

Child’s Right to “Elect” or Choose the Parent With Whom S/he Wants to Live (and/or Visit)

April 12, 2017

Like some other states, Georgia law allows a child involved in a custody dispute to “elect” or choose the parent with whom she or he wants to live.  Seems simple, but it’s actually more nuanced.  For one thing, it depends on the age of the child. Children between 11 and 14 may  choose the parent with whom she or he wishes to live, but her or his choice will not be given much weight.  The language of the relevant law puts it this way:  “[T]he 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 “complete discretion” and “not controlling” language can essentially negate the child’s choice.  That said, there is an interesting provision in the law in cases involving children between 11 and 14 that allows a judge to issue a temporary custody order  to the chosen parent for a trial period of no more than 6 months. Older children – those 14 and over –  have the right to elect or choose the parent with whom they wish to live and the statute says that the selection “shall be presumptive” unless the chosen parent is determined not to be in the best interests of the child.  Even for these children, the judge must consider what custody arrangement is in their best interests.  Some judges and Judicial Officers openly express distaste for this law and appear to treat a teenager’s election with a good deal of skepticism.

Children 14 and older may also choose not to visit, have counseling, and, by extension, have any contact at all with the noncustodial parent, but case law requires that a judge “supervise” this choice and issue a court order to that effect. This is due in part to the fact that the noncustodial parent has visitation rights previously established in a divorce decree or subsequent modification of custody order.  The cases that discuss this “visitation election” are mindful of the possibility that the custodial parent might be encouraging or even pressuring the child not to visit with the noncustodial parent out of spite or coercion.  To properly exercise supervision over a visitation election, the judge should interview the child to determine her or his wishes, note the child’s age, the circumstances of the divorce or parental breakup, and whether there is any evidence that the custodial parent is interfering with visitation or the child’s relationship with the other parent and issue an appropriate order.  The best interests of the child standard will apply.