UNDER THE LAW JOINT CUSTODY REFERS TO TWO VERY DIFFERENT THINGS AND IT DOES NOT NECESSARILY MEAN “EQUAL” CUSTODY
There are two kinds of custody of children in the State of Georgia, they are “legal” custody and “physical” custody. Legal custody is the power to make major decisions for a child related to the child’s health and moral well-being, education, extra-curricular, and religious upbringing. Physical custody is the power to have the child primarily live with you. We will talk about legal custody first.
Joint legal custody, or the shared power to make major decisions for a child, is routinely granted to parties in the State of Georgia without the need to fight over it. It is tossed out like a bone, or at least seems that way sometimes. The reason why it is awarded so easily is because the usual language awarding joint legal custody is as follows: “both parents shall discuss major decisions affecting their child’s health, education, extra-curricular, religion, and moral upbringing, and if after discussion the parties do not agree, then MOTHER shall have final decision making power.” You did not read that wrong. If she does not agree with you, she gets her way. It is not real joint custody. In some cases, that is not a problem. There is some valid power in the right to be informed and to discuss, but it is limited. If you want true joint custody it is a big issue. Don’t settle for this language. There is no reason that if both parties are involved parents, they cannot be granted final decision making power outright, and there is also no reason, in a true joint custody arrangement, why final decision making cannot be shared by two good parents, say dad gets education and extra-curricular and mom gets healthcare and religion. This can be a difficult issue for the non-custodial parent to prevail on in many courts, but it can be won if the issue is important enough.
JOINT PHYSICAL CUSTODY IS NOT FAVORED IN MOST GEORGIA COURTS BUT CAN BE FOUGHT FOR AND WON
Physical custody, or where the child primarily resides, is the issue that is the core of most child custody cases. Often parties fear that they cannot win primary custody of their children but they’d be happy with joint physical custody. This can be problematic in Georgia. Not only is there no presumption under the law in Georgia (like there is in many other states) that joint physical custody is preferred, a court in Georgia is not even required to consider joint custody under the law. The relevant statute simply states that the court “may” consider joint custody. From vast experience, and a reality check, if your case goes to trial, except in a minority of cases (it does happen in the right cases, but a minority of cases), the court is not going to award joint physical custody. It is winner take all situation at trial. Given this, the best way to get a real joint physical custody arrangement in Georgia is to avoid trial altogether. Get a settlement agreement. Easier said than done. If the other party won’t willingly settle, then you have to give the other party reason to settle. The best way to get the other party to settle is to build a solid case that gives real reason to fear going to trial. Meaning, even if you don’t want primary custody, you often have to act as if you do in order to get joint physical custody. Bargain from a position of strength, and if you have to put your case on at trial, you are ready to do so.
Georgia courts are much more receptive to joint physical custody these days. That is a custody arrangement that is sometimes 50/50 and if not 50/50 then much more than the traditional every other weekend. Alternative arrangements that are commonly being seen these days including the one party having every other Thursday through Monday and one overnight in the off week, with the parties dividing summer in half, along with the all the holidays. It is becoming more and more common for such arrangements to be awarded, even at trial, even 50/50 in the right cases. It is best to try to reach settlement with the other party, but if that cannot be done, true joint custody arrangements can be won at trial, if a party is willing to fight for it.
Often parties settle for labels, such as joint legal and joint physical custody, or sometimes they say they have joint custody, simply because they have joint legal custody. But it is important to understand that “joint” custody does not always mean what it says, and to understand and fight for true joint custody, and not just joint custody in name only.
Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.
Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.