Georgia Custody

Custody

Basic information

Should I start a court case to ask for supervised visits?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to Georgia Finding a Lawyer to seek out legal advice.

Who can get custody and visitation

Who can get custody?

A judge will decide who should have custody based on what s/he thinks is in the best interest of the child. The judge will assume that parents should share the rights and responsibilities to a child.¹ Parents have a legal duty to maintain, protect, and educate their children until the children are no longer legally in their care.² “Parents” usually means biological or adoptive parents under the law.

If one parent dies, the other parent generally is entitled to custody. However, if the that parent has been criminally indicted for murder or voluntary manslaughter of the other parent, the judge has the option to decide not to give that parent custody.³

There are some cases in which someone who is not a child’s biological or adoptive parent may be able to get custody. This person could be legally unrelated to the child, such as a parent’s spouse or partner, or the child’s relative who has been acting as a parent.⁴ For example, a stepparent who has not legally adopted his/her spouse’s child may be “legally unrelated” to the child, and may have to apply as an “equitable caregiver” to have custody or visitation rights. You can learn more about non-parents getting custody at I am not the child’s biological or adoptive parent, but I have acted in a parental role. Can I get custody?

¹ Ga. Code § 19-9-3
² Ga. Code § 19-7-2
³ Ga. Code § 19-9-2
⁴ Ga. Code § 19-7-3.1

Can a parent who committed violence get custody or visitation?

The judge must take into consideration any evidence of family violence when making a custody decision. When evidence of family violence is found, the judge will also take into consideration the safety and well-being of the child and of the parent who is the victim of family violence – this should be one of the judge’s main concerns. The judge should also consider the abuser’s history of violence or of causing reasonable fear of violence to another person.¹ However, there are many other factors that s/he will consider as well - see How will a judge make a decision about custody? Therefore, the fact that a parent committed family violence does not necessarily mean that s/he will be denied custody.

Visitation or parenting time may be awarded to a parent who committed violence only if the judge believes that proper measures can be taken to ensure the safety of you and your child. Here are some things the judge could include in the visitation order:

that the transfer of your child (from one parent to another) take place in a protected setting;
supervised visitation by another person or agency (the abuser may be ordered to cover the cost of this);
that the abuser has to attend and complete a certified family violence intervention program;
that the abuser cannot drink or do drugs during the visitation and for twenty-four hours before the visitation;
that overnight visitation is not allowed;
that the abuser post a bond (money) for the return and safety of the child; and
require any other condition that is considered necessary to provide for the safety of the child, the victim of violence, and any other household member.²

Whether or not visitation or parenting time is allowed, the judge may order the address of the child and the victim of family violence to be kept confidential.³

Note: A judge will not order you to attend joint counseling with the abuser as a condition of receiving custody, visitation, or parenting time.⁴

It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer, see our GA Finding a Lawyer page.

¹ Ga. Code § 19-9-3(a)(4)
² Ga. Code § 19-9-7(a)
³ Ga. Code § 19-9-7(b)
⁴ Ga. Code § 19-9-7(c)

What is the effect of a parent's military deployment on custody issues?

There are specific laws that address the effect of a parent’s military deployment on custody issues. If this applies to you, please go to Georgia statute 19-9-3, which you can read on our statutes page - please scroll down to subsection (i).

I am not the child’s biological or adoptive parent, but I have acted in a parental role. Can I get custody?

The law allows for a person to establish him/herself as an “equitable caregiver,” which is a person who has acted as a parent for a child under certain circumstances. An equitable caregiver could be:

a stepparent who has not adopted the child, but has acted as the child’s parent;
a parent’s romantic partner who has acted as the child’s parent;
another family member who has been acting as the child’s parent; or
another person substantially involved in the child’s life in a parental role.

You can only get custody or visitation as an equitable caregiver if the child’s parents are separated, and the child is not living with both parents.¹However, you cannot ask the court to become an equitable caregiver if:

your relationship to the child was created as a result of “dependency proceedings,” or because the child was removed from his/her parents’ home as a result of abuse, neglect, or exploitation and placed with you; or
there is an open child welfare and youth services case from the Division of Family and Children Services of the Department of Human Services about the child and his/her parents.²

For more information on how you can convince the judge that you should be considered an “equitable caregiver,” go to What will I need to prove to the judge to establish myself as an equitable caregiver?

¹ Ga. Code § 19-7-3.1h)
² Ga. Code § 19-7-3.1(i)

What will I need to prove to the judge to establish myself as an equitable caregiver?

You may be able to establish yourself as an equitable caregiver without proving the six factors listed below if:

the child’s parent agrees for you to have a parental relationship with the child; or
you and the child’s parent have a written agreement that shows that you both intend to share or divide responsibility for the child’s care.³

If the child’s parent does not agree to either of the above, you may be able to establish yourself as an equitable caregiver if you can show by clear and convincing evidence that you have:

fully and completely taken a permanent, absolute, committed, and responsible parental role in the child’s life;
consistently cared for the child;
established a bond with the child where the child depends on you;
established the relationship with the support of the child’s parent, and you and the parent have both understood, acknowledged, accepted, or behaved like you’re the child’s parent;
accepted full and permanent parental responsibilities without any expectation of payment; and
shown that the child will suffer physical or long-term emotional harm without you by proving the factors below and that continuing your relationship with the child is in the child’s best interests.¹

The judge will decide whether the child will suffer physical or long-term emotional harm if s/he is not allowed to have a relationship with you after considering the following factors:

who has taken care of the child in the past, and who is now taking care of the child;
the people with whom the child has psychological bonds and the strength of those bonds;
whether each party has been interested in and had contact with the child;
whether the child has any unique medical or psychological needs that a specific person is better able to meet; and
any other relevant factors.²

¹ Ga. Code § 19-7-3.1(d)
² Ga. Code § 19-7-3.1(e)
³ Ga. Code § 19-7-3.1(f)

I am the child's family member (grandparent or sibling). Can I get visitation?

The law allows for a grandparent, great-grandparent, or sibling (known in the law as a “family member”) to file for visitation in certain circumstances. This includes grandparents, great-grandparents, and siblings, even if they are connected to the child through a parent whose parental rights have been terminated.¹

A grandparent can file an original petition for visitation rights only if:

the child’s parents are separated; or
the parent who is the grandparent’s child has died.

If the parents of the minor child are still together and living with the child, a grandparent cannot start a visitation case unless the parent who is the grandparent’s child is incapacitated or incarcerated.²

A grandparent cannot file an original petition or file to modify or dismiss his/her visitation more than once in any two-year period, and cannot file in any year in which another custody action has been filed concerning the child. If a parent, legal custodian, or guardian wants to file to modify or dismiss the grandparent’s visitation rights, such a petition also cannot be filed more than once in any two-year period.³

A grandparent, great-grandparent, or sibling can file to intervene in any case that is already in court involving:

the issue of custody or visitation rights of the child in question;
divorce of the parents or of a parent of the child;
termination of the parental rights of either parent of the child; or
an adoption in which the child has been adopted by the child’s blood relative or by a step-parent.⁴

The judge can grant visitation rights to a family member if there is “clear and convincing evidence” that the visitation is in the child’s best interests and that the health/welfare of the child would be harmed if the visitation is denied. If there is no substantial pre-existing relationship between the child and the family member, the fact that the child would miss out on the opportunity to develop a relationship with that family member is not enough to be considered “harm” to the child. If you are the family member, the judge can find that “harm” to the health/welfare of the child is likely to occur if, before filing for visitation:

the minor child resided with you for six months or more;
you provided financial support for the basic needs of the child for at least one year;
you have an established pattern of regular visitation or childcare with the child; or
any other circumstance exists indicating that emotional or physical harm to the child would be reasonably likely to result if such visitation is not granted.⁵

Note: Even if a judge does not award visitation to the family member, the judge can still order the parent to notify the family member of any musical concerts, graduations, recitals, sporting events, etc., that the family member can attend.⁶

¹ Ga. Code § 19-7-3(a)
² Ga. Code § 19-7-3(b)(1)(A), (b)(2), (d)(1)
³ Ga. Code § 19-7-3(c)(2), (d)(1)
⁴ Ga. Code § 19-7-3(b)(1)(B)
⁵ Ga. Code § 19-7-3(c)(1)
⁶ Ga. Code § 19-7-3(g)

The custody process

How will a judge make a decision about custody?

Generally, the state of Georgia encourages a child to have continuing contact with both parents.¹ However, custody will be determined according to what the judge considers to be in the child’s best interest. The judge may consider any relevant factor including, but not limited to the following:

love, affection, bonding, and emotional ties existing between the child and each parent, as well as his/her siblings, half siblings, and step-siblings;
ability of each parent to give the child love, affection, and guidance and to continue raising and supporting the education of the child;
each parent’s knowledge and familiarity of the child and the child’s needs;
ability of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care; although, the judge will also take into consideration the fact that the other parent might provide child support;
home environment of each parent, focusing on if the environment will allow for the nurturing and safety of the child, rather than superficial or material factors;
importance of continuity in the child’s life and the length of time the child has lived in a stable environment;
stability of each parent’s family and community support systems;
mental and physical health of each parent except that a parent cannot be denied custody just because s/he is legally blind;² Note: The judge has the power to order a psychological or medical evaluation of the family;³
each parent’s involvement in the child’s educational, social, and extracurricular activities;
each parent’s employment schedule, looking at how flexible the parent’s schedule is and what limitations exist, if any, to care for the child;
home, school, and community records and history of the child, as well as any health or educational special needs of the child;
each parent’s ability to manage parenting responsibilities, both past and future;
each parent’s willingness and ability to encourage a close and continuing parent-child relationship with the other parent if it is in the best interests of the child;
any recommendation by a court-appointed custody evaluator or guardian ad litem;
any evidence of family violence or sexual, mental, or physical child abuse, or criminal history of either parent; and
any evidence of substance abuse by either parent.²

When evidence of family violence is found, the judge will also take into consideration:

the safety and well-being of the child and of the parent who is the victim of family violence – this should be one of the judge’s main concerns; and
the abuser’s history of violence or of causing reasonable fear of violence to another person.⁴

Note: For purposes of a custody decision, if a parent is absent or relocates because of domestic violence, this will not be considered child abandonment, assuming that the parent is away for what is considered to be a reasonable amount of time.⁵

¹ Ga. Code § 19-9-3(d)
² Ga. Code § 19-9-3(a)(3)
³ Ga. Code § 19-9-3(a)(7)
⁴ Ga. Code § 19-9-3(a)(4)
⁵ Ga. Code § 19-9-3(a)(4)(C)

At what age can my child decide who s/he wants to live with?

In cases involving children who are 14 years old or older, the child will have the right to select which parent s/he wants to live with. The child’s choice will be honored unless the judge determines it is not in the child’s best interest. If your custody order was decided before your child turned 14, you may be able to modify your custody order based on your child’s preference once s/he turns 14. So, for example, if you lost custody of your child when the child was 10 and now that your child is 14, s/he wants to live with you, you can file a petition to modify the custody order based on your child’s preference. If the judge believes it is in the child’s best interest to live with you, the judge might modify (change) the custody order.¹

In cases where the child is between the ages of 11-13, the judge will consider who the child wants to live with; however, the judge will not necessarily honor this preference.²

¹ Ga. Code § 19-9-3(a)(5)
² Ga. Code § 19-9-3(a)(6)

Once the judge makes a custody decision, can I find out why s/he made that decision?

Before the end of the custody hearing, either parent can request that the custody order outline the specific reasons why the judge came to the final custody decision and which factors were the determining factors. If joint legal custody is awarded, the judge will also address issues affecting the child’s education, health, extracurricular activities, religion, and any other important matters. The order will be filed within 30 days of the final hearing, unless that timeframe is extended by the judge upon the agreement of the parties.¹

¹ O.C.G.A. § 19-9-3(a)(8)

Where can I find more information about custody in Georgia?

Georgia Legal Aid has information about custody, including grandparents’ rights, children born out of wedlock, and more. Please note that WomensLaw.org has no relationship with this organization. We provide the link for your information only.

Steps to file for custody

Considerations before filing

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

Step 1: Prepare for the case

Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

Step 2: File and serve the custody petition

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

If you and the other parent are…	Then you can usually file for custody in…
married and getting divorced	the divorce case.
married but not divorcing	a separate custody petition.
not married	a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for custody as a non-parent, go to I am not the child’s biological or adoptive parent, but I have acted in a parental role. Can I get custody? To find out about filing for visitation as a grandparent or sibling, see I am the child’s family member (grandparent or sibling). Can I get visitation? You can also talk to a lawyer to get advice for your situation.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Georgia Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

Step 3: Preliminary court dates

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

problems with service of process;
referrals to mediation;
temporary custody and visitation orders; and
pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.

Step 4: Reach an agreement or go to trial

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

Step 5: Options if you disagree with the order

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

The other parent gets sent to jail or charged with child abuse or neglect;
The other parent is not following the custody and visitation order; or
Your child’s needs change in a big way.

After an order is in place

If a custody/visitation order is already in place, can I get it changed?

Whether or not you will be able to change the custody/visitation order may depend on what part of the order you want to change.

Changing the visitation / parenting time portion:
Either parent can go back to court to request to change to the visitation/parenting time portion of the custody order at any time as long as a request is not made more often than once within a two-year period from the last custody decision. You do not need to show a change in circumstance to change the visitation/parenting time portion of the custody order.¹

Changing the custody portion of the order:
To modify (change) the custody portion of the order, you will need to show that there has been a change in any material conditions or circumstances of either parent or the child. One possible change in circumstances could be a child’s preference to live with the non-custodial parent once the child turns 14.² See At what age can my child decide which parent s/he wants to live with? for more information on children’s custody preferences. In addition, a military parent’s absence because of his or her deployment (or possible future deployments) cannot be the only factor used to claim that there has been a change in material conditions or circumstances of either parent of the child. However, the judge may consider evidence of the effect of the deployment in determining if there has been a change in material conditions or circumstances of either parent or the child.¹

After a change of custody has been requested, the judge may temporarily change the terms of the custody order until a final custody decision is made by the judge.³

¹ Ga. Code § 19-9-3(b)
² Ga. Code § 19-9-3(a)(5)
³ Ga. Code § 19-9-3(e)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Legal Information: Georgia