The Difference Between Legal and Physical Custody
A child custody order transfers responsibility of care for a child(ren) to parents or someone else that can raise the child(ren) following a divorce or other event such as the death of a single parent. However, the most common situations involving a court order establishing child custody are:
- divorce of the child(ren)’s parents
- the legitimization of a child(ren)’s father
- the death of a single parent
- the finding that one of the child(ren)’s parents is unfit and can no longer have custody
In Cumming Georgia, as with other courts in Georgia, there are two (2) kinds of child custody:
- Legal Custody: Legal custody determines which parent makes major decisions for the child, including the child’s education, health care, extra curricular activities and religious upbringing.
- Physical Custody: Physical custody determines which parent with whom the child lives.
In Cumming Georgia, as with other courts in Georgia, it is common for divorced parents (or otherwise unmarried parents) to have both joint legal and physical custody of their minor children. The person who was granted legal custody can make important decisions regardless the child’s care. It can be something like medical care or religious upbringing. If the court grants joint legal custody, both parents can make decisions for the child, whether the parent has physical custody or not. If the court gives sole legal custody, one parent can make all decisions without asking another parent.
The person who has physical custody has the responsibility for the physical care of a child. If the court grants joint physical custody, the child lives with each parent for the same amount of time. If the court grants sole custody, the child lives with the parent over fifty percent (50%) of the time and another parent has the right to visit the child.
How is Child Custody Determined in Georgia
According to Georgia law, custody is decided upon in the best interest of the child. To determine what is the best for a child, the court has to consider:
- Child’s age
- Child’s health
- Emotional ties between the child and parents
- The ability of each parent to care for the child
- The child’s ties to home, community, and school
- History of family violence (if any)
The court does not have to automatically give custody to the mother or father. However, the court also cannot deny either parent the right of visitation because they were never married to the other parent, or because the other parent has a disability or alternative lifestyle.
In addition to the custody order, the court can also render the order for child support. Custody and visitation aren’t the same as the child support order, thus you can’t refuse to let the other parent visit the child because he or she is not making court ordered child support payments. On the other hand, you also can’t stop making payments because the other parent is not allowing you to see the child.
Sometimes, if custody harms the child, the court can give custody to somebody else, even a grandparent, adult sibling, aunt or uncle if it is in the best interest of a child. The new custodian will serve as a guardian of the minor child(ren). A potential guardian typically has to petition the court the court for custody of the child(ren) and once appointed is eligible to recieve child support from the actual parents.
What is Joint Custody?
The joint custody can come in both legal and physical custody and it focuses on the responsibilities of each parent separately instead of both parents together. Unmarried parents who live separately have joint custody, and so long as the parties cohabitate together a Parenting Plan (See O.C.G.A. § 19-9-1) will not be required. Full joint custody allows both parents to make major (and minor) parenting decisions together and have physical custody of the child.
In Cumming Georgia, Forsyth county and all other Georgia courts there are four (4) areas in which major parenting decisions may be made jointly:
- religious upbringing of the children;
- non-emergency medical care of the children;
- extracurricular activities for the children; and
- educational decisions
As discussed, the four (4) above listed areas of major parenting decisions are a part of the “legal custody” aspect of child custody. Typically joint legal custodial arrangement requires that the parents share in decision making for their minor child(ren). However, the courts will also usually choose one parent to have final decision making authority in the event that the parties cannot agree on a major decision.
Final decision making authority does not always allow one parent to make unilateral decisions without consulting with the other parent. Even though one parent is designated to have final decision making authority, the court will generally require the parent to still consult with the other parent before making any major decisions regarding the children. This is usually detailed in the Parenting Plan approved and ordered by the court.
Joint physical custody is not the norm in the State of Georgia. Joint physical custody is typically an arrangement where the parents share equal or nearly equal parenting time. Judges in Georgia have a bias against equal parenting time. Joint physical is a parenting arrangement that can typically only be accomplished by agreement. Judges will assign one parent as the primary custodial and the other as secondary.
What is Split Custody?
Split custody or a split Parenting Plan is a parenting time and and child custody arrangement where “there are two (2) or more children with the same parents, where one parent is the custodial parent of one or more of the parties’ children and the other parent is the custodial parent of the other child or children. In a split parenting case, a parent is the custodial parent (aka Primary Physical Custodian) of any child spending more than fifty-percent (50%) of the time living with that parent. Accordingly, a parent is defined as a noncustodial parent of any child spending less than than fifty-percent (50%) of the time with them. In Cumming Georgia and all other Georgia courts, a split parenting arrangement shall have only two (2) custodial parents and only two (2) noncustodial parents. And no child shall have more than one (1) custodial parent or one (1) noncustodial parent. See O.C.G.A. § 19-6-15 for more information.
Child custody and visitation cases can be complicated, especially when parents can’t agree. Contact us now to understand how the law affects your rights. Out child custody divorce and family law attorneys can be reached by calling 770-609-1247.
Updated: 2017-09-19
