O.C.G.A. § 19-9-6 includes the following definitions regarding joint custody:

“Joint custody” means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody.

“Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

“Joint physical custody” means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.

“Sole custody” means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training, and the noncustodial parent shall have the right to visitation or parenting time. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights or parenting time.”

Frequently, agreements between parents provide for joint legal custody with one party being the primary physical custodian of the children. One parent may have final decision-making authority for all issues concerning the children, or the decision-making can be divided with each parent having final authority over different areas (such as education, health care, extracurricular activities, or religious upbringing).

Who decides custody issues?

The decision of who will have custody can be made in several ways:

• by the parents as a result of their discussions, or
• by the parents with the help of their lawyers, or
• by the parents with the help of a mediator (who has no authority to make a decision), with or without attorneys participating, or
• by the parents agreeing to binding arbitration on child custody and related matters, or
• by the judge after a hearing or trial.

Many law firms, including Hindson & Melton LLC, will work collaboratively to assist parties seeking amicable custody agreements that are in the children’s best interests. For more information, or to discuss your Georgia child custody questions, contact Atlanta area lawyers Hindson and Melton LLC.

© Karen S. Hindson, Hindson & Melton, LLC   January 22, 2014

ALSO SEE:

• PARENTING PLAN REQUIRED FOR ALL GEORGIA CUSTODY CASES
• COLLABORATIVE DIVORCE
• DIVORCE COGNITIVE BEHAVIORAL THERAPY

Grandparent visitation rights law

Georgia has enacted a grandparent visitation rights statute.    “The statute was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects.  In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.”  Van Leuvan v. Carlisle

Findings of fact and conclusions of law are required

The Georgia law requires the trial judge to make specific, written findings of fact that support its ruling and show in the decision that the court applied the proper evidentiary standard in reaching its decision.   In the Van Leuvan v. Carlisle case, the judge awarded the maternal grandmother visitation and the mother appealed.  The appeals court vacated the trial court’s decision and sent the case back to the trial court because the court did not comply with the law’s requirement to make written findings of fact and demonstrate that the proper evidentiary standard was applied.

When might grandparents get visitation?

The court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.

Examples of facts that could be important include:

• the minor child lived with the grandparent for at least six months
• the grandparent provided financial support for the basic needs of the child for a year or more
• there was an established pattern of regular visitation or child care by the grandparent
• other facts that  indicate that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

Application of the law is sometimes complicated

See our 2012 article for more information about Georgia grandparent visitation rights.  There are limitations in the law on when grandparents can bring a new case regarding visitation, and under what circumstances a grandparent can intervene in an ongoing case.    Because the U S Supreme Court has said that parents have Constitutional rights regarding their children, attorneys and trial court judges must carefully comply with the requirements of the law before grandparent rights will be upheld if appealed by a parent.  The grandparent must show by “clear and convincing evidence” that the child will be harmed without the visitation and the visitation is in the best interest of the child.  This is the evidentiary standard that is required because of the parent’s Constitutional due process rights.  The trial court’s written decision must demonstrate that the court applied this standard in making its decision and explain the decision with written findings of fact.

Guardian ad litem for the child

The Court will sometimes require the grandparent seeking visitation to pay the total cost of a guardian ad litem for the child, if the grandparent can afford the expense without hardship.

Mediation to try to resolve the grandparent visitation dispute

Sometimes, the Court will order mediation between the parties to seek an agreement in the child’s best interest.  Ideally, the parties can set aside their personal conflicts and work out an agreement that best meets the child’s needs.  Sometimes, however, this is not possible and the Court must make a decision in the court’s discretion.  The Court is required by law to substantiate it’s decision with findings of fact that the Court says constitute clear and convincing evidence supporting its decision ordering visitation.  If the trial court does this, its decision will not be overturned on appeal unless the appeals court finds the trial court judge abused his discretion.

© Karen S. Hindson, Hindson & Melton LLC – August 24, 2013

ALSO SEE:

• CHILD OVER AGE 14 CAN CHOOSE NOT TO VISIT THE NONCUSTODIAL PARENT
• PATERNITY AND LEGITIMATION
• STEPARENT ADOPTION

Fee award is in the judge’s discretion

Whether to award attorneys fees, and the amount, is in the judge’s discretion.  The judge must consider the financial circumstances of both parties.  Under Georgia law, attorneys fees in a divorce case are considered to be temporary alimony.   The judge may order payment of a certain amount of attorneys fees at a temporary hearing, and perhaps additional attorneys fees at the end of the case.  The judge may require a spouse to pay attorneys fees even if alimony is ultimately not awarded in the case.   The judge will make “findings of fact” explaining the amount of the judge’s award of attorneys fees and will identify the statutory basis for the attorneys fees awarded.  In Georgia divorce cases, attorneys fees are most often awarded under O.C.G.A. § 19-6-2.  But other Georgia code sections also authorize attorney fees awards in family law cases -  such as when one side is acting in bad faith, or is subbornly litigious.  Attorneys fees can also be awarded in separate maintenance cases, paternity suits, child custody , and contempt of court proceedings.

Pay attention to the fees you are incurring!

It is important to remember that the full amount of attorneys fees requested may not awarded by the judge, even if the judge awards some fees.  The party who incurred the fees will be liable to pay his or her attorney whether or not the judge orders the other side to pay.  As a result, it is important to be aware of the attorneys fees being incurred in your Georgia divorce case.

Purpose of attorney fee award

The purpose of the award of attorneys fees is to enable the receiving spouse to contest all of the issues raised in the divorce or separate maintenance case.  The amount is within the judge’s discretion, and the judge must consider the financial circumstances of both parties.  The judge will look at what legal services are necessary for the case and what is reasonable compensation for the legal services performed.  The application for attorneys fees must be made prior to the final decree of divorce.

When are attorneys fees not available?

In the event of adultery of one spouse that has not be “condoned” (forgiven) by the other spouse, the party committing adultery would not be entitled to attorneys fees because they are considered temporary alimony.  However, the judge would have discretion to award attorneys fees if the adultery issue is contested.

If one spouse willfully abandons the other spouse, he or she will forfeit termporary alimony (and thus attorneys fees for the divorce).  As with adultery, however, if the issue of abandonment is contested, the judge could award attorneys fees after considering the financial circumstances of both parties.  The issue of abandonment might be contested if one party says the separation was the result of the cruel treatment of the other.

If attorneys fees are awarded by the judge, they can be collected by attachment, contempt of court, or a writ of fieri facias.

A word to the wise

The cost of your representation is an important issue in your divorce case.  Money that you and your spouse spend on attorneys fees for your Georgia divorce is forever gone.  It will not be available for your support, your children’s college education, or your retirement.   The direction your divorce case takes will depend largely on decisions made by yourself and your spouse.   The attorneys of Hindson & Melton LLC utilize uncontested divorces, collaborative approaches, mediation, or other strategies designed to achieve mutually acceptable settlements at a reasonable cost whenever possible.

© Karen S. Hindson, Hindson & Melton LLC, January 19, 2013

ALSO SEE:

• PARENTING PLAN REQUIRED FOR ALL GEORGIA CUSTODY CASES
• JOINT CUSTODY AND WHO DECIDES CUSTODY
• CUSTODY ELECTION 14 YEAR OLD

Collaborative Divorce Model 

Collaborative divorce involves each party selecting an independent collaborative law divorce attorney, and the four individuals working together as a team with the goal of resolving all issues.   Third party experts such as financial or mental health professionals may be jointly retained to assist with specific issues such as division of assets or custody and visitation. 

Key to the collaborative divorce model is the participation agreement signed by the parties, wherein they agree not to go to court.  If the parties are unable to reach agreement through the collaborative process, all of the collaborative professionals withdraw and each party hires new counsel to litigate the case in court.     

The premise of the Georgia and South Carolina collaborative divorce  is that the clients will have more control over their divorce and that the process will be more respectful.  By removing the threat of litigation, the clients are able to participate voluntarily in a good faith exchange of relevant information and utilize interdisciplinary professionals as needed to help resolve difficult issues.

Advantages of Collaborative Divorce in Georgia and South Carolina: 

• Collaborative divorce can be less costly and time-consuming than litigation
• Interdisciplinary team can be designed to address specific issues cooperatively
• Clients have great degree of involvement in defining their future
• Collaborative divorce can be less stressful than litigation – by removing the fear of “going to court”
• Collaborative training emphasizes “win-win” negotiations and solutions
• Collaborative divorce can be faster than court discovery and waiting for court hearings
• Creative solutions are encouraged by the process
• The clients are in charge of decision-making rather than the court
• Interest-based bargaining focuses on the underlying concerns, needs or interests of the parties.  Interest-based bargaining is more cooperative and less adversarial than position-based bargaining.  Each party communicates what is important about an issue rather than arguing for a specific solution or outcome. 

The Participation Agreement: 

Terms of the Georgia ǀ South Carolina collaborative divorce Participation Agreement include the following:

• Every effort will be made to negotiate an agreement without going to court
• Each party agrees to share information freely and work to reach agreement
• Parties will agree on and jointly hire neutral experts, if needed
• If agreement is reached, the attorneys draft legal documents that are submitted to the court for approval
• If the collaborative process fails and litigation is necessary, the collaborative attorneys will be replaced by other attorneys who are free to litigate on behalf of the parties

 Is my case suitable for collaborative divorce?

• Some uncontested divorces have very few issues, and the parties are able to quickly reach agreement on all issues.  The collaborative process may not be necessary or helpful in such a case.  An attorney prepares the documents as counsel for one of the parties, and the other party is free to consult with another lawyer as needed in reviewing the documents.  Or, each party may have an individual attorney from the beginning, and the attorneys assist with the preparation and review of an uncontested divorce agreement.    
• If there is a high level of conflict between you and your spouse, collaborative divorce is not likely to be successful.  It could be even more expensive or protracted than a traditional litigated divorce.
• If one of the parties is extremely manipulative or controlling, collaborative divorce is not likely to be successful because the collaborative approach involves good-faith compromise and fair play.  
• Hindson & Melton LLC can represent you in a collaborative divorce in either Georgia or South Carolina.  We also handle traditional litigated divorce cases and uncontested divorces.   

While collaborative practice is most often associated with divorce, it is gaining momentum as an alternative dispute resolution mechanism in other industries, including healthcare, employment, probate, contruction, and religious organizations.  Contact Hindson & Melton LLC for a consultation regarding collaborative divorce or to discuss applying collaborative practice principles to resolve other disputes.  

Karen S. Hindson   August 12, 2012  

The arbiter’s decisions must be incorporated into a final decree regarding child custody unless the judge makes specific written factual findings explaining why the arbiter’s award would not be in the best interests of the child.  O.C.G.A. § 19-9-1.1.

Many people want to mediate their divorce or child custody cases.  What is the difference between arbitration and mediation?  Mediation is a process where the mediator has no authority to make a decision; the mediator is a neutral who tries to help the parties reach an agreement.  In binding arbitratration, on the other hand, the parties submit their issue to a neutral arbitrator and they give the arbitrator authority to make a decision that is binding on both parties.

Many people do not like the idea of binding arbitration because they may not like the arbitrator’s decision!  However, if you are involved in a case where you argue about every little detail of parenting time, visitation, etc., binding arbitration can be a good alternative to continuing a costly court battle.

Sometimes, parties can identify a third person whom they both trust – such as a counselor – and they can agree to submit parenting disputes to this third party for binding arbitration.

If you would like to explore binding arbitration as a possibility for your custody or visitation dispute, contact Hindson & Melton LLC.
KSH June 5, 2012