Child Custody & Child Support

Our Georgia law firm is a boutique law practice focused on helping healthcare providers, professionals, businesspersons, and their family members protect their interests and peace-of-mind, including the safety of their children, their financial assets, and their family's general well-being.

Legal Custody v. Physical Custody

Under Georgia law, there are two distinct types of child custody, namely legal custody and physical custody. “Physical Custody” refers to who has primary physical possession of the minor child (i.e., the parent with which the minor child primarily reside), while “Legal Custody” refers to who has authority to make decisions regarding or that otherwise affect or have an impact upon the minor child, such as decisions related to the minor child's healthcare, education, religious upbringing, extracurricular activities, and general well-being, whether said decisions are considered routine (i.e. day-to-day) or extraordinary. By statute, Georgia courts may award joint legal and/or physical custody to be shared by both parents, or it may award sole legal and/or physical custody to an individual parent, and there is to be no presumption in favor of any particular form of custody nor in favor either the mother or father of the child. In practice, however, it is typical for the Courts to award joint legal custody of the minor child to both parents (with one parent given tie-breaking authority for major decisions affecting the minor child), and award primary physical custody to the parent that has acted as the primary caregiver to the minor child.

Tie-Breaking Authority

Unless one parent has engaged in abuse towards the other parent or the minor child, is addicted to drugs or alcohol, or is otherwise engaging in conduct that makes them an unfit parent, most courts in Georgia are reluctant to award sole legal custody to one parent. Rather, to ensure that both parents have an opportunity to form a significant bond with their minor child and have an active role in his/her life, most Georgia courts would prefer to award joint legal custody to the parents. Where the parents share joint legal custody of a minor child, they are obligated to engage in good faith discussions with the other parent and obtain their consent on any major decisions affecting the minor child prior to taking steps to effectuate said decision. As one can likely assume, however, these parental discussions often end in stalemates where the parents are unable to come to a harmonious decision. To avoid having the parties run back to the Court as a final arbiter on every single disputed parenting decision, however, the Courts (and/or the parties) often set one parent (or a specified third party) as a designated “tie-breaker” that has final decision-making authority for decisions affecting the minor child. Where a tie-breaker exists, the parties are still obligated to engage in good faith discussions prior to making a major decision affecting the minor child, but should said discussions break down or end in a stalemate, the tie-breaker has the authority to make the final decision on the matter. Some parties choose to split this tie-breaking authority by issue (e.g., the mother is tie-breaker on medical and religious decisions, while father is tie-breaker on educational and extracurricular decisions), while others simply designate a specific parent as the tie-breaker for all issues. Note that where the parties are unable to agree on who shall act as tie-breaker, the Courts typically select the parent who will have primary physical custody of the minor child to act as tie-breaker.

Physical Custody, Parenting Time & Visitation

Physical custody, parenting time, and visitation are all different names for the same idea: who will have physical possession of the children and on what schedule and conditions. Because every family's circumstances (including financial resources, work schedules, physical proximity to work/school/family, and the attitude of the parents towards one another and their ability to co-parent) are different, what physical custody arrangement works for one family may be unworkable for another. Some parents prefer a joint physical custody schedule where they split time with their minor child equally (whether on a “rotating week” schedule or other basis), while others fall into the “standard” 80/20 split where one parent has possession of the child the majority of the time and the other parent has the minor child every other weekend. Some parents choose to take a more nuanced approach, however, tailoring their physical custody schedule so as to satisfy the needs of both parents to have significant parenting time with their child while also allowing each parent to succeed in their career and personal life. Additionally, parents that have concerns about the other parent's personality and/or conduct may seek an order of supervised visitation, wherein a third party will supervise the other parent's visitation with the minor child to protect the child's safety and best interests. While it is often difficult for parties to a divorce (or other custody dispute) to look at the strengths of the other party as a parent as opposed to their weakness or shortcomings as a spouse or person, parents who can agree on a fair and workable physical custody schedule that affords both parents significant time and interaction between each parent and the minor child are more likely to comply with the custody and support provisions and avoid further disputes with the other party in the future. Remember, it is typically in the best interests of both you and the minor child to have the other parent significantly involved in the minor child's life.

“The Best Interests of the Child” and Other Custody Deciding Factors

If the parties cannot agree as to physical and/or legal custody of the children, the assigned judge (not a jury) will decide the terms of the parties' physical and/or legal custody arrangement. In such event, the judge is given ultimate discretion to determine the custody arrangement that he or she believes to be in “the best interests of the child” and which will “best promote the child's welfare and happiness” of the child. The Judge's determination may be based on any relevant factor or information, including but not limited to:

  • The love and emotional ties existing between the child and each parent, as well as the child's (step) siblings;
  • The mental and physical health of each parent;
  • Each parent's employment schedule (and the flexibility of the same);
  • The stability of each parent's family unit and their respective support systems within the community;
  • Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities as well as past performance and relative abilities of parenting responsibilities;
  • Each parent's knowledge and familiarity of the child and the child's needs and ability to maintain continuity in the child's life in a stable, satisfactory environment;
  • 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; and
  • Each parent's' criminal history, substance abuse history, as well as Family violence or other sexual, mental, or physical child abuse or criminal history of either parent.
Calculating Child Support Awards

In Georgia, parents are obligated to provide financial assistance to their children until they turn eighteen (18) years old (or marries, dies, is emancipated, joins the military, or graduates high school). The non-custodial parent (i.e., the parent who does not have primary physical custody of the minor child”) will generally be required to provide a reasonable amount of child support to the other parent to assist with living expenses or to otherwise pay for (all or some of) the child's insurance and other expenses. The actual monthly child support obligation that will be required of the non-custodial parent is determined both by guidelines set by Georgia statute as well as the party's negotiations. Using the parties' gross monthly income in combination with other factors, such as the number of children entitled to support and the parties' respective time with the children, the parties may determine the “basic child support obligation” that the non-custodial parent will be obligated to pay. That basic child support obligation may be negotiated up or down, however, based upon each parent's allowable parenting expenses, deductions, and other deviations, such as the parent's respective payments for child-related expenses like daycare, school tuition, insurance premiums, etc. As such, while the basic child support award may be $1,000.00 per month on paper, the actual amount paid each month as court-ordered child support to the other parent may be much higher or much lower. There is a great deal of discretion given to the parties and the Courts in determining what expenses, deductions and deviations will be allowed, and thus it is critical to have an experienced family law attorney representing your interests in any dealings in- or out-of-court related to child support obligations and awards.

Child Support Awards in Joint Custody Cases

Many people assume that if they share joint physical custody with the other parent, then neither parent will be obligated to pay child support to the other parent. In Georgia, however, this is not necessarily true. No matter what custody arrangement the parties and/or the Court decides upon, the parties will still be obligated to negotiate (or if the parties cannot agree, the Court will be required to set) a child support obligation between the parents based on the parties' respective and combined incomes and other relevant factors. Keep in mind that the parties cannot collude to avoid the payment of child support from one parent to the other, though they can effectively tailor the structure of their custody and support arrangements so as to avoid substantial support obligations attaching to either party. Again, your attorney's experience and ingenuity will be of critical importance in negotiating and drafting these terms.

Garnishments & Income Deduction Orders

While this is covered more in the Contempt & Modification section, the non-custodial parent's child support obligations may be required to be paid directly to the other parent by the non-custodial parent's employer through an income deduction order. Whether such an order is appropriate (and/or feasible), however, is left up to the parties and/or the Court. Instituting and maintaining a continuing garnishment and/or income deduction order is a very complicated process with many pitfalls and you should seek the services of an attorney regarding the same.

Military Parents & Out-of-State Custody Arrangements

Divorces or other custody/support disputes where one or both parents are service-members and/or live in different states are often the most difficult to resolve and end up with the greatest stress and heartache for both the parents and children involved. When a parent is deployed and/or living in another state (or country), it can be difficult for that parent to have meaningful interactions with their minor children, particularly if their custody agreement was not drafted to account for this cross-state visitation. There are a million drafting details that are easy to miss, such as who will transport the children to/from out-of-state visitation, how often, and who will pay for the associated travel expenses. Even if the parties are living in the same city and/or state currently, it is important to be prepared in the event that one party is forced to relocated for family or their career. It is important to work out these and other critical points on the front-end, rather than wait until you are actually dealing with the ramifications of inter-state (or inter-country) visitation on the back-end. As well, there are specific protections afforded to military service members as it relates to custody and support arrangements, and parents must satisfy complicated requirements and criteria to take advantage of (or overcome) these protections.

Parenting Plans & Child Support Addendum

A parenting plan is the formal exhibit attached to a Divorce Decree or other relevant order (e.g., Order of Legitimation, Order of Adoption, etc.) that sets forth the terms of the parents custody arrangement, while the Child Support Addendum is also a formal exhibit attached to said Divorce Decree or other relevant order that sets forth the parent's respective child support rights and obligations. Some lawyers draft their agreements such that they incorporate the parties' parenting plan and child support addendum directly into the Divorce Decree or other relevant order, but the best practice is to make them a separate exhibit that can be switched out easily (in the event of a Contempt & Modification action) without disturbing the other terms of the Divorce Decree or order. Either way, these documents and the language contained therein are incredibly important, as they will control the parents' rights, obligations, and relations with one another and their children for up to two decades. Therefore, these documents need to be carefully and competently drafted so as to protect your children’s present and future needs, recognize and accommodate your resources and obligations, as well as confront potential contingencies, emergencies, and disagreements that may occur during you and your children's lives. While it is ultimately up to the Court to review these documents to ensure they are in the “best interests of the child(ren)”, it is important for each parent to review and inspect these documents with a fine-toothed comb with the help of their attorney to ensure that they and their children are adequately protected from loss.

Atlanta and Augusta Family Law Firm for Healthcare Providers and their Family Members

Hamil Little’s attorneys have extensive experience in family law and domestic relations actions in Georgia's courts and otherwise guiding and assisting healthcare providers, professionals, businesspersons, and/or their family members in avoiding legal pitfalls associated with their personal lives, relationships, and family. Our law firm has offices in Atlanta and Augusta, Georgia. Contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta) to schedule a confidential consultation.