Frequently Asked Divorce and Custody Questions

Divorce and Custody FAQ's

Who will get custody of our child?

In Georgia, child custody is divided into two categories: Legal custody (Decisions regarding the child) and Physical custody (Possession).  Most parents share legal and physical custody, however, this is not always the case. Typically, the parents are awarded joint legal custody, which means that the parents  share in decision-making regarding the children and that the parents have equal rights to the child’s medical and educational records. Typically, one parent will be awarded final decision-making authority for times when the parents are unable to reach a mutual decision. Usually, the parent with primary physical custody has final decision-making authority. Physical custody is usually shared with one parent designated as the primary physical custodian and the other parent receives secondary physical custody/visitation.  The courts determine physical custody based on several factors, including, most importantly, who has been the child(ren)’s primary care taker during the course of the marriage.


What is joint custody? What is sole custody?

Most parents share Joint Legal Custody which means that most major decisions are made jointly by the parents.  Typically, there are four areas in which the decisions are required to be made jointly: religious upbringing of the child(ren); medical care of the child(ren); extracurricular activities; and education.  Even though a joint legal custodial arrangement requires that the parents share decision-making, the courts will designate one parent to have final decision-making authority in the event that the parties cannot agree.  Final decision-making authority does not allow for a parent to make a unilateral decision. Even though one parent is designated to have final decision-making authority, that parent must still consult with the other parent before making any major decisions regarding the child(ren).  Joint physical custody is where the parents share equal or nearly 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.

Sole custody means (legal or physical custody) that all of the custodial rights are assigned to one parent and the other parent has no rights. Having sole custody, however, does not alleviate the other parent of their obligations, such as child support obligations.

If both parents share custody does anyone pay child support?

It depends on several factors:  Income of the parties and needs of the child.  Because child support is calculated based on income, the parent with the higher income may pay some support. Typically, the only time when there may be no support paid is in circumstances when the parties share equal parenting time and have nearly equal incomes.

Can a parent refuse to allow visitation if child support is not paid?

No. Child support and visitation are two separate rights/obligations that are not connected to one another.

When will child custody be decided?

Custody is may be decided by agreement, at a Temporary Hearing and/or at a Final Hearing.   

When can I modify custody?

There are no time restrictions on when a modification of custody can be filed. The moving party must, however, be able to show that there has been a substantial change in circumstances that would warrant modification.

What if we cannot agree on a custody arrangement?

In the event that the parties cannot agree on a custody arrangement, then the judge will make the determination of custody. Even with a recommendation from a Guardian Ad Litem, the judge still has full discretion to make the custody determination based on all evidence presented at trial.

What is an ex parte order?

An ex parte order is an order from a judge without having given opportunity for both parties to be heard. The only time that one can expect to receive an ex parte order is in a situation where the children may be in severe danger and giving the opposing party time to respond may result in significant harm to the child.

How is custody decided?

The standard in Georgia is to determine custody based on the best interests of the minor child. Unless one parent has been a danger to the child, the beginning point is to typically establish who has been the primary care giver for the minor child. In most cases, the primary care giver will receive primary physical custody.

The primary care giver is the parent who wakes the child up for school, helps him/her get ready, provides meals, does bath time, takes the child to doctor’s appointments, is at parent teacher events, etc. In cases where these duties are equally shared, it is a little more difficult for the judge to determine. Factors that may be considered are work schedules, who has available time for the children, stability, ability to provide, and at a certain age and the child’s desires may also be considered.

What is visitation?

Visitation is the common term used for the non-custodial parent’s parenting time. Visitation may also be known as secondary physical custody.

Can a judge order supervised visitation or no visitation?

Yes, a judge has discretion to order supervised visitation. It is not very common, but in cases where it is shown that it is likely that one parent is a risk for harm to the minor child, a judge can order supervised visitation. This may mean supervision by a family member, a supervision agency, or law enforcement.

For all other questions, please contact The Carr Law Group for a consultation with one of our experienced Attorneys.