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Divorce – Child Custody

Both parents of a child must decide on the custody of minor children under the age of 18. Divorce courts in Georgia are concerned about the well-being of any children born naturally or adopted by the parents.

There are two elements that go into custody: legal and physical. Legal and physical custody are broken down into four different custody types under Georgia state law:

Sole Physical Custody

Sole physical custody means the children in questions shall reside with and under the supervision of one parent. The court must approve the parent’s plan for the other parent’s visitation rights. In Georgia, if you have sole physical custody of your child(ren), your ability to move out of state depends on what your parenting plan says.

Joint Physical Custody

Joint physical custody means each of the parents will have significant periods of physical custody. This means that both parents will have more or less continuing contact with the children. Having joint physical custody of your child(ren) with your spouse doesn’t always mean the time will be split 50/50. Sometimes, if the parents live near each other a 50/50 split is possible, but that isn’t always the case. Before deciding on joint physical custody, factors like living distance or if you get along with your spouse or not should be considered in order to avoid rough and stressful transitions.  

Sole Legal Custody

Sole legal custody means that one parent shall have the right and responsibility to make decisions about the health, education and welfare of the children. The other parent retains visitation rights. Although the courts favor joint legal custody, sole legal custody is the most common form of custody agreement.

Joint Legal Custody

Joint legal custody means both parents share the right and the responsibility to make decisions about the health, education and welfare of the children. The law presumes that joint legal custody is in the best interest of minor children when the parents can make it work and submit a workable “parenting plan,” under Georgia law O.C.G.A. § 19-9-1. However, joint legal custody is not always easy. It requires both parents to cooperate and lay aside all differences, putting their children’s best interests in front of their own.

The Most Important Principles of a Parenting Plan are:

A) A recognition that a close and continuing parent-child relationship and continuity in the child’s life will be in the child’s best interest;

B) A recognition that the child’s needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;

C) A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and

D) That both parents will have access to all of the child’s records and information, including, but not limited to, education, health, extracurricular activities, and religious communications.

(2) Unless otherwise ordered by the judge, or agreed upon by the parties, a parenting plan shall include, but not be limited to:

(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;

(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;

(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;

(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;

(E) An allocation of decision-making authority to one or both of the parents with regard to the child’s education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and

(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent’s right to access education, health, extracurricular activity, and religious information regarding the child.

(c) If the parties cannot reach agreement on a permanent parenting plan, each party shall file and serve a proposed parenting plan on or before the date set by the judge. Failure to comply with filing a parenting plan may result in the judge adopting the plan of the opposing party if the judge finds such plan to be in the best interests of the child.

Visitation Rights in a Divorce

In recent years, lawmakers have realized visitation rights do not translate easily into laws. The law states that any person involved in a child’s welfare is entitled to reasonable visitation. However, what is reasonable in one circumstance is not necessarily reasonable in another. That’s why parents are left to define reasonable visitation standards for grandparents and others. This does not mean that every decision is up to the parent, though. If your divorce case in Georgia involves child custody or issues relating to visitation, a judge will need to rule on certain matters.


 The state of Georgia does not currently have any laws that grant child visitation rights to step-parents, which could make applying for visitation significantly harder. In all cases, third-party visitation rights are more likely to be granted by the court if they are deemed to be in the best interests of the child.


Under Georgia state law, grandparents of children may obtain visitation while the parents are alive, regardless of the parent’s marital status. A Georgia court may allow or prevent visitation rights in any situation based on the best interests of the child.

At Brown Dutton & Crider, we understand that child custody issues are complex and emotionally draining. Call today to schedule a consultation with one of our experienced and knowledgeable Georgia family law attorneys to discuss your options and how you can best protect your family.