Does it matter that dad is an alcoholic? What if mom had an affair? With a felon? How about the time dad forgot to pick up the kids from school? But mom is breastfeeding! How do judges decide?
In Georgia, juries are not allowed to decide custody of a minor child, only a judge can do that. Official Code of Georgia (2015 Edition), §19-9-3(a)(2). Even when parents agree on custody and parenting, the judge is required to review the agreement and either approve it “as is” or supplement it before approving of it. Official Code of Georgia (2015 Edition) §19-9-5.
Neither parent starts with an advantage when answering the custody question. There is “no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.” Official Code of Georgia (2015 Edition), §19-9-3(a)(1).
When making a custody determination, Georgia judges have a lot of discretion. A lot. In other words, if you don’t like the judge’s decision, it might be very difficult to be successful in an appeal. You will have to prove that the judge abused his or her discretion. This standard of appellate review is also referred to as the “any evidence” standard, which means that if there was any evidence at all to support the judge’s decision -- a single fact -- then it will be upheld, even when the evidence contraindicating the decision was much more abundant.
Here's what Georgia’s Supreme Court has said repeatedly: “Where the trial court exercises its discretion and awards custody of a child to one fit parent over the other fit parent, the appellate court will not interfere with that decision unless there is evidence the trial court clearly abused its discretion. If there is any evidence to support the trial court's decision, it cannot be said there was an abuse of discretion.” Rose v. Rose, 294 Ga. 719 (2014), citing Powell v. Powell, 277 Ga. 878 (2004); Welch v. Welch, 277 Ga. 808, 809 (2004).
Clearly, an appeal of a custody decision that you disagree with will always be a tough row to hoe. But we’re getting ahead of ourselves.
Begin with a clean slate. Neither parent starts with an advantage when answering the custody question. There is “no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.” Official Code of Georgia (2015 Edition), §19-9-3(a)(1). Judges may consider the following factors, including any other factors that she or he decides is important. How much weight is given to each factor is left entirely to the judge.
The 17 factors. There is a lot for the judge to consider, including things like:
(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;
(H) 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;
(I) The mental and physical health of each parent;
(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;
(N) 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;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and,
(Q) Any evidence of substance abuse by either parent.
Official Code of Georgia (2015 Edition), §19-9-3(a)(3).
As you can see, the list is long and provides for a lot of wiggle room. The weight that a judge will give to the factors that might be present in your family’s situation will most likely determine the outcome. And every judge weighs them differently.
Authored by Cynthia L. Patton, Esq. This blog post is for informational purposes only and does not constitute legal advice. You should consult your own attorney for specific legal advice.