- 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.
- Like all states, Georgia adopted factors (called Best Interests of the Child or BIOC) that judges should use in custody determination. They were defined in the Uniform Marriage and Divorce Act to provide consistency. 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 and legal custody.
- Physical custody determines the parent with whom the child lives. The parent that has the children the longest is considered primary custodial while the other parent is secondary custodial.
- Legal custody determines who makes major decisions concerning the child, including the child’s education, health care, extra curricular activities and religious training.
- Courts may request the services of a Guardian Ad Litem when there needs to be a more focused analysis of the situation.