Types of Child Custody in Georgia – Physical and Legal Custody

Georgia Law provides for two separate and distinct types of Custody for Minor Children.  Physical Custody and Legal Custody.

Physical Custody relates to which parent the child physically lives with.  Typically there is a Primary Physical Custodian and the other parent has Visitation Rights.  The parent with Visitation Rights is commonly referred to as the “non-custodial parent” and it is the non-custodial parent that is ordered to pay Child Support. Visitation schedules vary from case to case. A typical or perhaps the most common Visitation Schedule is for every other weekend, Friday afternoon or evening through Sunday afternoon or evening, alternating major holidays, and a period of time during the summer, and sometimes a weekday evening visit during the “off-week.” In a contested case where there are no issues about either parent’s abilities to care for the child, this typical schedule is what the Court will usually order. In a Settlement Agreement the parents can fashion any kind of schedule they like. Physical Custody can be “Joint” Physical Custody. Joint Physical Custody means the child spends 50% of the time with each parent. Week on, week off, etc. Joint Physical Custody does not necessarily mean there will be no child support awarded, but it is possible. It is very, very rare for a Court to order Joint Physical Custody in a contested case. Most Judges see it as creating an inherent instability in the child’s life. One retired Judge was famous for telling parents that wanted Joint Physical Custody, that he would grant their request, but the child wasn’t moving. This meant that the parents would move in and out of the home where the child lived. To my knowledge no two parents ever agreed to this, and perhaps that is a reason we shouldn’t ask our children to do it. Some Judges will not approve a Settlement Agreement that sets out Joint Physical Custody, but some will.

Legal Custody relates to which parent is entitled to make major life decisions for the child. These issues are frequently broken down into four (4) categories: (1) Medical, (2) Educational, (3) Religious, and (4) Extracurricular Activities. Legal Custody may be solely in one parent, which is Sole Legal Custody. In a Sole Legal Custody situation the parent without any Legal Custody Rights has no decision making authority and may not even be permitted access to medical and educational information from care givers and schools. More commonly the parents will have Joint Legal Custody, and most commonly one of the parents is designated as the Primary Legal Custodian. Joint Legal Custody with a Primary Legal Custodian contemplates that the parents will consult with each other and attempt to make a joint decision, but if that is not possible, the Primary Legal Custodian has the “tie-breaking” vote and is empowered to make the final decision. Straight, Joint Legal Custody with no designated Primary id oftentimes not a good idea because the two parents have gone their separate ways for one reason or another and this likely means they do not see things the same way. In a straight, Joint Legal Custody situation, if the parents do not agree there is no built in resolution factor, which means the parents have to go back to Court, or one parent ends up acquiescing in the other’s decision. In contested cases, Judges almost always designate a Primary Legal Custodian, but in a Settlement Agreement, most Judges will allow the parents to agree to such. Sometimes the Legal Custody will be shared between the parents such as one parent is the Primary Legal Custodian for Medical and Educational issues and the other parent is Primary for Religion and Extracurricular Activities, or some other division of the categories. This is unlikely to be ordered by a Judge in a contested case, but Judges frequently allow parties to agree to this arrangement in a Settlement Agreement.

When parents are married, the each have undivided rights to everything “marital” including the children, so they each have full Physical Custody and Legal Custody Rights. This will not change until a Divorce Court enters and order that then sets things out in a different manner, as set out above. Divorced parents most commonly will have Joint Legal Custody rights, with one parent designated as the Primary Legal Custodian.

When a child is born outside of wedlock, the mother has Sole Legal and Sole Physical Custody Rights as a matter of law. The unwed father has no Parental Rights at all, until they are established by Court Order in a Legitimacy Case. It is relatively more likely that the mother retains Sole Legal Custody, but it is even more likely that the mother will be the Primary Legal Custodian, but this is not necessarily the way it will be.

If you are involved in a Custody Dispute, you need to have a lawyer to represent you in the case. There is likely nothing more important in a parent’s life than their children.