The mother of a child born outside of wedlock (presuming the father has not established legitimacy by court order), that mother has Sole Legal and Physical Custody rights as a matter of law, she already has "full" custody. The unmarried father must file to establish Legitimacy to gain any parental rights. Married parents have completely equal and undivided rights to everything "marital" including the children of the marriage. In a Legitimacy case or a divorce case with children, if the parents cannot settle their case by agreement, the judge will decide which parent will have Primary Physical Custody, the other parent will have Visitation rights, and typically the parents will share Joint Legal Custody with one of them designated to be the Primary Legal Custodian, which gives that parent the final decision making authority when the parents disagree about any legal custody issue. Most divorcing parents will come away with shared parental rights, so obtaining "full" custody is not generally likely, the same is generally true for legitimacy cases because the law presumes that legitimacy is in the best interest of the child. Thus, to obtain "full" custody in a legitimacy case or divorce case would require that one of the parents has very serious flaws, such that being around that parent would create an actual danger for the wellbeing of the child.

The "wrong" thing happens at the courthouse all of the time. The number one reason for that occurrence is that the person mishandled their case. The number one way people mishandle their case is they fail to retain an attorney to represent them. Other ways a mother may lose custody is based on mistreatment of the child, heavy drug and/or alcohol issues, perhaps DFCS involvement, and incarceration. Being found legal unfit will cause the same result, loss of custody.

It takes clear and convincing evidence for a court to find a parent "unfit" and to take away their parental rights. This can happen if the parent has abandoned the child, or has subjected the child to cruelty or abusive treatment, or is raising the child in immoral, obscene or illegal situations, and/or failing to provide the child with the necessities of life.

Legal custody has to do with which parent has the right to make important life decisions for the child. This is generally divided into 4 categories: medical, educational, religion and extracurricular activities. Physical custody has to do with which parent the child lives with on a fulltime basis.

Not so long ago this could be answered by saying "no" a judge will not grant 50:50 physical custody as the result of a trial. Back then, almost the only way 50:50 physical custody would happen is if the parents made a settlement agreement that included 50:50 physical custody and the judge approved it. However, in recent years some judges have ordered 50:50 physical custody in a contested case. It is still not the most likely outcome of a trial.

O.C.G.A Section 19-9-3, provides a long list of factors to consider. Evidence needs to be presented to address as many of these factors as possible.

1. The love, affection, bonding, and emotional ties existing between each parent and the child;
2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
3. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
4. Each parent's knowledge and familiarity of the child and the child's needs;
5. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
7. The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8. The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
9. The mental and physical health of each parent, except to the extent as provided in Code Section 30-4-5 and paragraph (3) of subsection (a) of Code Section 19-9-3 and such factors as provided in Code Section 15-11-26;
10. Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
11. Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
13. Each parent's past performance and relative abilities for future performance of parenting responsibilities;
14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
15. Any recommendation by a court appointed custody evaluator or guardian ad litem;
16. Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
17. Any evidence of substance abuse by either parent.

These decisions are based on the court's determination of what is in the best interest of the child.