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.


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.

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.