One of the most challenging areas of law involve child custody. Custody disputes are always emotionally charged, sometimes involving extended family members, friends, neighbors, and support systems, trying to define what is the “best interests” standard.
Understanding how the courts determine “best interest” is not as difficult as it may seem. In Georgia, the parent who gets the kids is determined by a Superior Court Judge, without a jury (cite). In 2010, the Legislature redefined and codified factors used to objectively determine the child best interests listed at O.C.G.A. 19-9-3(a)(3), Discretion of judge in custody disputes. Listed in order of priority, the legislature intended the below to set an objective standard for child custody determinations.
(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.
In our 20 years of custody trial experience, we have found that the four (4) most important factors are:
- 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;
- Each parent’s knowledge and familiarity of the child and the child’s needs;
- 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;
- Any recommendation by a court appointed custody evaluator or guardian ad litem.
Custody litigation is a difficult and should not be undertaken alone. It involves a court system, trying to review the lives of children through a very small window and comes with emotional ties that exist in no other area of law.
