Joint Physical Custody is sharing between parents of where their children live.
There are two specific types of child custody in the State of Georgia. The two types of custody 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 activities, and religious upbringing. Physical custody is the power to have the child primarily live with you. “Joint custody” under the law is the sharing of a child’s custody. But this can be deceptive, and “joint custody” does not necessarily mean equal custody and joint physical custody or joint legal custody are two entirely different things.
This section will discuss what is joint physical custody in the State of Georgia, and in Atlanta metro area courts such as in Forsyth, Gwinnett, Cobb, Fulton, Paulding, Coweta, Cherokee, Paulding and other Atlanta counties. Joint legal custody is discussed separately.
Physical custody, or where the child primarily lives, 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 physical custody under the law. The relevant statute simply states that the court “may” consider joint physical custody. In many cases it becomes a winner take all situation at trial. You will often hear that the best way to get a true joint physical custody schedule with your child is to reach a settlement with the other parent. This is often 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. This said, more and more, courts are willing to award differing forms of joint physical custody. Not always equal, but much more than what use to be “standard” visitation. Let me explain.
Standard visitation in most Atlanta metro area courts, such as in Gwinnett, Forsyth, Cobb, Fulton county is generally considered to be a visitation schedule in which the non-primary parent who does not have physical custody of the child, but instead awarded visitation that consists of every other weekend from Friday to Sunday, alternating every other holiday (like Thanksgiving, Christmas, Spring Break) and two weeks in the summer. This is around 70-80 days per year with your children. Not much, but is what “standard” visitation is. It is a visitation schedule structured around the philosophy that both parents are not of equal importance, but instead, one primary parent and the children stable in one home, is presumed to be in the children’s “best interests” (see other FAQs on this site to understand what “best interest” means under the law, and how to use it in a child custody case). This philosophy is hotly debated, but nevertheless, remains active and viable in many Atlanta metro area courts and in particular Cherokee County, but depending on the case, Gwinnett, Forsyth, Paulding, Fulton, Cobb, and all metro area counties will often fall back to “standard visitation”. And standard visitation is most definitely not joint physical custody, even if joint legal custody is also awarded (see FAQ on joint legal custody).
Georgia courts these days have “evolved” in many cases beyond the philosophy that drove “standard” visitation. Today, true joint physical custody schedules are much more common. Joint physical custody schedules are not always equal custody (but sometimes they are). Custody schedules range from schedules, such as first advocated in Wisconsin, in which one joint custodian has the children every other Thursday through Monday, alternate the holidays, and half or more of the summer, to true 50/50 child custody plans.
However, if you want to pursue a real joint physical custody arrangement, both parties need to be able to get along, to cooperate, and to live close enough together to make it work. If you cannot establish these elements, a court is not going to award joint physical custody. So it is important to carefully plan your arguments and case in consort with your attorney.
There are many reasons to pursue a true joint physical custody schedule (whether equal custody (which still remains very difficult – but not impossible) to be awarded by a Georgia court) not the least of which is it may be in the best interest of your children. If you have a philosophy that both parents being intricately involved in their children’s lives is more important than having one primary parent, and one home, then some sort of joint physical custody schedule is in your children’s best interests. And this philosophy is becoming more and more accepted in Georgia courts. That children need two strong and involved parents. But you must still make your case or most courts are likely to revert back to “standard” visitation.
Another reason to pursue joint physical custody is if you expect the other parent will move away or move out of state. The more custody time you get, the more difficult it is for the other parent to take the children and move. And this is a legitimate reason to obtain some sort of joint physical custody schedule in a Georgia court.
Yet another reason involves child support. Joint physical custody schedules can be used to reduce a child support obligation.
Keep in mind that the term “joint physical custody” is just a term. What really matters is the physical custody schedule with the children, the label itself does not mean much. But it is often beneficial to award both parents joint physical custody, but name one party “primary” and the other “secondary” if the joint physical custody schedule is not 50/50. If it is 50/50, then both parties should be denoted primary physical custodians of the child, and joint legal custody decision making power divided between the parties.
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.