CHILD CUSTODY AND VISITATION
Child Custody and Visitation arguments are ALWAYS about the best interest of the child. Georgia law is very specific in the legal standard. While there are a number of factors that can come into play in what is in the best interest of the child, that is the legal test by which every case is measured. Any case about custody or visitation must focus on the child, not the parent.
That is right, the judge does not care about your emotions, and the judge is not supposed to care about your emotions. You are a source of love, income, guidance, protection and a myriad of other things for your child. How can you provide better than the other parent? Whether you are male or female is irrelevant. Whether you have all of the emotions in the world is irrelevant. This is harsh, but how you win is to show how you are the one that provides the best future for your child. You care about your child, and that is what the Judge is supposed to do: care about your child’s future. To win your case, you have to show how you can provide a brighter future. How is that done?
Who has been the primary caregiver? If one person has cooked all of the meals and done all of the homework for the past six years, the Judge is going to be inclined to think of that person as the primary caregiver. The Judge will presume that the parties agree that this is the person best suited to be the caregiver, unless the other parent brings up some compelling reason why this should change. A number of factors of stability, specific impact on the child, and lifestyle problems can arise. In the event that there is a recent change or in the event that both parties share fairly equally in caregiving, the following factors become very significant:
Does each parent have a stable place to stay? Obviously, a parent and three children cannot stay in a one bedroom apartment. Does each parent have a job? The amount of money made is not nearly as important as having a stable job. Both sides often think that a higher-paying job gives an advantage, but it does not. As one judge stated, “That is why we have child support.” However, does one parent have a more flexible schedule that allows for more time with the children? Does one parent have a job that requires evening work or travel? These are all factors in determining stability.
Specific Impact on a Child
While harder to define, this is the element most likely to trigger a change in custody. A child getting injured frequently when in the care of a parent, truancy problems, or dropping grades: how is the child being impacted by failures of a parent? If you are going to challenge custody or visitation based on a failure on the part of the other parent, you will want two elements. Proof (doctor’s reports, pictures, school records) and solution (how you will fix the problem with tutors, structured activities, or other solutions).
There is nothing wrong with a parent having fun. Life is not over when you become a parent, but too much fun can backfire. A party lifestyle requiring frequent babysitting, drinking to excess around the children, or using illegal drugs while children are in the care of the parent are frequent examples.
A touchier lifestyle subject is a spouse that has an affair. Remember that it is not about you. Whether that spouse is a good husband/wife or not is irrelevant to whether or not they can provide for a child. Instead, a strategy should focus on how the cheating spouse chose to be with another person instead of being at family dinners or baseball games. The strategy could also include showing the person’s lack of judgment if they are dating someone who is a drug user or who has a sex offence or other crime of moral turpitude in their background. Whatever the issue, remember that your strategy is always to show how the facts impact the children, not the parents.
Mother’s Love/Father’s Guidance
Mothers are full of love, and children are lost without their father’s guidance. Judges have heard it all, and they are not supposed to care about how this impacts you the parent. They are supposed to care about how the child is impacted. The judge presumes both parties love the child and both parties provide guidance. Instead of focusing on how much you care, focus on how much you show that you care through actions. While it may not impact the future of a child, stories of how one parent stayed up through night terrors or arranged that special birthday party with Anna and Elsa against all odds can show your special bond with your child. While this type of thing does not matter as much as a child’s grades, if the judge feels that both parents are good parents (which often happens), this type of story can help sway the scales in your favor.
Age of Voice
We have to address a voice that we have not discussed yet: that of the child. A judge can listen to a child at any point if the judge finds it necessary, but the courts prefer to keep children out of a custody battle, especially at a young age. Any child after the age of eleven (11) may make an election to live with one parent or another. That child’s voice is heard, but there is no presumption created before age fourteen (14).
Age of Election
At the age of fourteen (14), a child may elect which parent has custody. That election may be overcome with evidence that the parent is unfit or that the child would be harmed in some way, but absent some significant difference in ability to parent, the presumption created by an election will stand. Examples of times when an election would be overturned by a judge include failing grades, a parent whose work schedule makes it so they are not home when the child is home, or inappropriate drugs or sexual behavior developed under the care of the presumptive pick.
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