Do mothers and fathers have the same rights to custody and visitation?

Yes and no.  If the parents are married, they have equal rights to visitation and custody.  However, when the parents are not married, only the mother of a child has custody rights to the child. For an unwed father to get any parental rights, including custody or visitation rights, he must file a legitimation action in court.  A legitimation action legally recognizes that a man is the father of the child and gives the child the right to inherit from the father. As part of a legitimation action, the father can also ask for custody rights, visitation and/or child support.

What if the father is listed on the child’s birth certificate?

Just because a father’s name is listed on the birth certificate does not give the father any legal rights to custody or visitation under Georgia law. It also does not give the child the right to inherit from the father. To have full rights as a father in Georgia, an unwed father must legitimate the child either in a court action.

What if the father has been ordered to pay child support?

A court order requiring the father to pay child support does not give the father any legal rights to custody or visitation.

Does the law favor giving custody to the mother or the father?

Neither. The parents are equal under the law. There is no presumption that the child should live with the mother or the father. The decision always depends upon what the judge believes will promote the best interest and welfare of the child, based on the evidence presented in court.

What factors will a judge consider when deciding which parent should have custody of a child?

The judge may consider a long list of factors when deciding who should have custody of the child. Some of them are:

  • The bonding and emotional ties that exist between each parent and the child
  • The length of time the child has lived in the current home and whether that environment is stable and satisfactory
  • The mental and physical health of each parent
  • Evidence of family violence, child abuse, substance abuse or criminal history of either parent
  • The ability of each parent to meet the educational needs of the child
  • The ability of each parent to provide the child with food, clothing, and medical care
  • Each parent’s involvement in the child’s educational, social and extracurricular activities

What is the difference between physical and legal custody?

There are two types of custody under Georgia law: physical and legal. Primary physical custody determines the parent with whom the child lives. Legal custody allows parents access to the child’s medical and educational information and both parents being involved in major decisions related to the child’s upbringing, including the child’s education, health care, extra curricular activities and religious training.

Can one parent be awarded both physical and legal custody and the other parent be awarded neither?

Yes. When only one parent has physical and legal custody rights to the child, this is called sole custody. The parent with whom the child lives has the authority to make all decisions concerning the child, except for day-to-day decisions while the child is visiting the other parent.

Can the court change or modify a custody decision?

Yes. A new court case has to be filed stating that there has been a substantial change of circumstances that affects the interests and welfare of the child since the order was entered. If the non-custodial parent files the petition, it must be filed in the county of the custodial parent. If the custodial parent files the petition, it must be filed in the county of the non-custodial parent.

Is the parent who does not get physical custody usually awarded visitation?

Yes.  The court believes that a child’s best interest is served when there is a relationship with both loving and caring parents.  The law favors both parents having equal access to the child’s medical and educational information and both parents being involved in major decisions related to the child’s upbringing. But, in some instances, the court may place restrictions on the visitation if it is in the best interest of the child.

When can the court change or modify a visitation order?

Visitation rights may be modified by the court at any time when there has been a change in circumstances. In addition, visitation may be modified without a change in circumstances, but this may not be done more than once in each two-year period following the signing of the initial custody order.

Who is entitled to custody of a child upon the death of a parent?

The surviving parent is normally entitled to custody of the child upon the death of the other parent. However, a non-parent may ask the court to give him or her custody. The court may award custody of the child to a non-parent based upon the child’s best interest and welfare, but there is a presumption in favor of the natural parent.

Can I prevent the other parent from getting custody if I die?

No. You can express your preference that a non-parent be given custody in your will, but a judge will have to make the final decision after being asked to do so by the non-parent. After your death, the non-parent will have to file for guardianship or custody and tell a judge why it is in the child’s best interest for the non-parent to have custody instead of the other parent. You cannot control what a judge will decide.