Will I Lose Access to My Children in Divorce? Understanding Custody in Georgia

In Georgia, custody is divided into two types: legal and physical.

Legal custody pertains to accessing information, such who can talk to doctors, teachers, coaches and other important people in the children’s lives and access to information such as medical and educational records. It also means the right to be informed and consulted regarding important decisions to be made about the children prior to those decisions being made.

Georgia law presumes parents will have joint legal custody. Generally, there would be a reason for parents to not share joint legal custody, such as if one parent has been completely uninvolved, is incarcerated, addicted to substances or has severe mental health problems that prevent meaningful and relevant participation.

Physical custody refers to how the children will spend time with parents. Sole physical custody would mean the child only spends time with one parent. Primary physical custody would mean one parent has more overnights with the children than the other, such as if the children spend most school nights at one parent’s home.

Joint physical custody is exactly equal parenting time, such as alternating weeks with the children, or spending two nights each week with each parent and alternating the other three nights of the week. Sometimes secondary physical custody is referred to as the time a parent who spends fewer overnights with that parent than the primary physical custodian.

While some parents are adamant that they will not consider anything other than joint physical custody, because they consider it their right as a parent to have equal time, it is important to remember that judges look to the best interest of the children, not parents’ rights or ego.

Rightly or wrongly, most judges feel it is better for the children to spend most school nights in one home and visit the other parent on non-school nights. Judges have seen plenty of cases where joint physical custody is a ploy to avoid child support or doesn’t work and the couple ends up back in court for a modification. It doesn’t mean it isn’t possible to have the court approve joint physical if a couple has already been alternating weeks for a long period of time, they live in the same school district and are able to make decisions together. However, if a couple doesn’t get along well enough to agree to joint physical custody, you may have trouble getting a judge to order it.

Working with an experienced lawyer mediator like Julie Ernst can help both parents agree on terms that meet both parents’ concerns and the best interests of the children. In negotiations, we may consider more non-school days such as holiday and summertime with the secondary physical custodian so time out of school is close to equal. Sometimes we add special language to parenting plans to address specific concerns, such as ensuring children are well-rested with all homework completed on school nights.  

Maintaining a Strong Relationship with Your Child

Perhaps the most important goal for parents is to maintain a strong, meaningful lifelong relationship with their children. Working together to reach agreement allows for creative solutions that a court might not take time to consider. As one judge says, mediation and cooperative divorce allows what a judge does with a hatchet to be accomplished with a scalpel.

With a willingness to communicate and compromise, you and your spouse can establish a parenting plan that reflects both of your roles as parents.

Conclusion

Losing access to your children is a common but often unfounded fear in divorce. By approaching custody with a spirit of collaboration and putting your child’s needs first, you can create a plan that keeps you actively involved in their life. Mediation and cooperative divorce can be an effective tool for achieving a balanced, positive outcome for everyone involved.