- When a married couple has children, they automatically enjoy certain legal rights (often called parenting rights) to raise their children in the manner they deem best.
- When one of the two parties in a marriage contract files a motion/petition in the appropriate court of jurisdiction to dissolve a marriage, they have informally agreed to relinquish their parenting rights until the court can determine the best outcome (custodial/non-custodial, arrangement, etc) for the children given the facts in the case.
- If parents are not married, most states do not automatically give fathers the same rights as married parents or unmarried mothers.
- Here is a great article on the rights of unmarried fathers by state.
- In Georgia, O.C.G.A. § 19-9-3(a)(1) gives no preference to any party or to any specific form of custody (legal, physical) or arrangement.
- O.C.G.A. § 19-9-3(a)(2) gives courts broad discretion to make decisions based on the facts of the case and the best interests of the child in each case.
- Like all states, Georgia adopted factors (called Best Interests of the Child or BIOC) that judges should use in custody determination. O.C.G.A. § 19-9-3(a)(3) defines 17 factors.
- Judges need to determine several things: type of custody, parenting time time arrangement, etc. There are two types of custody: physical custody and legal custody.
- If parents cannot agree to an parenting time arrangement, the defacto arrangement is the non-custodial parent seeing their children every other weekend with alternating holidays.
- Court have taken an informal approach that children can be detrimentally harmed by exposing the children to conflict when parents are forced to co-parent.
- Therefore, they believe the best approach is that a child has one stable household rather than be exposed to two households.
- The data on custody outcomes in Georgia is limited. Looking at the data collected by the Georgia Child Support Commission (See Custody Outcome Findings) as part of their quadrennial child support guidelines reviews, mothers are custodial parents about 80% of the time throughout Georgia. This conclusion supports data collected at the national-level. While the statute is ‘unbiased’, the result is not.
- There is no data on which BIOC factors are used by judges to determine custody. Given the vague wording of the factors like ‘The mental and physical health of each parent’, they provide little real consistency for which they were intended.
- With no standard, parenting time arrangements vary by county and even by judge.
- Looking at the disposition manner of a random sample of 572 divorce cases in Gwinnett County, Georgia for 2016 and 2017, most cases are settled prior to trial and not heard by a judge. Therefore, the discretion that proponents say is needed is not used in the majority of cases.
- While the custody arrangements are outlined in a document called the parenting plan, there have been several surveys which indicate that 40% of custodial parents have obstructed parenting time with the non-custodial parent.
- Most states do not have laws that protect to right of non-custodial parents to see their children as the Court has ordered. Therefore, non-custodial parents must go back to Court to enforce civil arrangements like parenting time.
- The current judicial approach lacks any real basis in science and infringes on the rights of parents and children.
- The science says that children do best when they have meaningful relationships with both parents. Both children and parents should have that right. The Courts should not be able to use conflict (see article) to deny it.
- That right should not be infringed by courts using government-contrived parenting standards (BIOC) to judge parents and picking a winner and loser often with little or no real evidence.
- Instead, courts should use factors that discourage parental behavior which hinder relationships with their children. They include: 1. Parental Alienation 2. Contempt regarding parenting time 3. Willingness to co-parent 4. Evidence of drug abuse
- When two parents walk into Court, the Court must assume that both parents are equally fit and deserve equal time with their children unless there is evidence of domestic violence/drug abuse or other illegal behavior.
- The Georgia Legislature needs to add statutory language that explicitly states that equal or shared parenting time is the starting point or presumption.