§ 19-9-1. Custody of children
(a) (1) In all cases in which a divorce is granted, the party not in default shall be entitled to the custody of the minor children of the marriage. However, in all cases in which a divorce is granted, an application for divorce is pending, or a change in custody of a minor child is sought, the court, in the exercise of a sound discretion, may look into all the circumstances of the parties, including improvement of the health of a party seeking a change in custody provisions, and, after hearing both parties, may make a different disposition of the children, placing them, if necessary, in possession of guardians appointed by the judge of the probate court.
(2) In addition to other factors that a court may consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of family violence:
(A) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
(B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
(C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child or children for the purposes of custody determination; and
(D) The court shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The court may, in addition to other appropriate actions, order supervised visitation pursuant to Code Section 19-9-7.
(3) (A) In all cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection shall be controlling, unless the parent so selected is determined not to be a fit and proper person to have the custody of the child.
(B) In all cases in which the child has reached the age of at least 11 but not 14 years, the court shall consider the desires, if any, and educational needs of the child in determining which parent shall have custody. The court shall have complete discretion in making this determination, and the child's desires are not controlling. The court shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interest of the child standard shall be controlling.
(C) The desire of a child who has reached the age of 11 years but not 14 years shall not, in and of itself, constitute a material change of conditions or circumstances in any action seeking a modification or change in the custody of that child.
(D) The court may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of at least 11 years where the judge hearing the case determines such a temporary order is appropriate.
(b) In any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party or on the motion of the court, that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the minor.
(c) (1) In any case in which a judgment awarding the custody of a minor has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.
(2) In any case in which visitation rights have been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent's visitation rights.
(3) Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.
(d) In the event of any conflict between this Code section and Article 3 of this chapter, Article 3 shall apply.
§ 19-9-2. Right of surviving parent to custody of child
Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the court, upon petition, may exercise discretion as to the custody of the child, looking solely to the child's best interest and welfare.
§ 19-9-3. Custody of minor children, discretion of court as to
(a) (1) In all cases in which the custody of any minor child or children is at issue between the parents, there shall be no prima-facie right to the custody of the child or children in the father or mother.
(2) The court hearing the issue of custody, in exercise of its sound discretion, may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child or children should be awarded. The duty of the court in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness and to make its award accordingly.
(3) In addition to other factors that a court may consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of family violence:
(A) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
(B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
(C) If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child or children for the purposes of custody determination; and
(D) The court shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The court may, in addition to other appropriate actions, order supervised visitation pursuant to Code Section 19-9-7.
(4) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection shall be controlling unless the parent so selected is determined not to be a fit and proper person to have the custody of the child.
(4.1) In all custody cases in which the child has reached the age of at least 11 but not 14 years, the court shall consider the desires and educational needs of the child in determining which parent shall have custody. The child's selection shall not be controlling. The best interests of the child standard shall apply.
(5) Joint custody, as defined by Code Section 19-9-6, may be considered as an alternative form of custody by the court. This provision allows a court at any temporary or permanent hearing to grant sole custody, joint custody, joint legal custody, or joint physical custody where appropriate.
(6) The court is authorized to order a psychological custody evaluation of the family or an independent medical evaluation. In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith.
(b) In any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party or on the motion of the court, that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor, provided that the review and modification or alteration shall not be had more often than once in each two- year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the minor.
(c) In the event of any conflict between this Code section and any provision of Article 3 of this chapter, Article 3 shall apply.
(d) It is the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.
(e) Upon the filing of an action for a change of child custody, the court may in its discretion change the terms of custody on a temporary basis pending final judgment on such issue. Any such award of temporary custody shall not constitute an adjudication of the rights of the parties.
§ 19-9-4. Investigation of home life and home environment of parents in contested child custody proceedings
(a) On motion of either party in any action or proceeding involving determination of the award of child custody between parents of the child, when such motion contains a specific recitation of actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child, the court may direct the appropriate family and children services agency or any other appropriate entity to investigate the home life and home environment of each of the parents. In any action or proceeding involving determination of the award of child custody between parents of the child when during such proceedings a specific recitation of actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child has been made the court shall also have authority on its own motion to order such an investigation if in the court's opinion the investigation would be useful in determining placement or custody of the child. The court may also direct either party to pay to the agency the reasonable cost, or any portion thereof, of the investigation. The report of the investigation will be made to the court directing the investigation. Any report made at the direction of the court shall be made available to either or both parties for a reasonable period of time prior to the proceedings at which any temporary or permanent custody is to be determined. Both parties shall have the right to confront and cross-examine the person or persons who conducted the investigation or compiled the report if adequate and legal notice is given.
(b) This Code section shall apply only with respect to actions or proceedings in which the issue of child custody is contested; and this Code section is not intended to alter or repeal Code Sections 49-5-40 through 49-5-44.
§ 19-9-5. Agreement between parents as to custody of child
(a) In all proceedings under this article between parents, it shall be expressly permissible for the parents of a minor child to present to the court an agreement respecting any and all issues concerning custody of the minor child. As used in this Code section, the term "custody" shall include, without limitation, joint custody as such term is defined in Code Section 19-9-6. As used in this Code section, the term "custody" shall not include payment of child support.
(b) The court shall ratify the agreement and make such agreement a part of the court's final judgment in the proceedings unless the court makes specific written factual findings as a part of the final judgment that under the circumstances of the parents and the child in such agreement that the agreement would not be in the best interests of the child. The court shall not refuse to ratify such agreement and to make such agreement a part of the final judgment based solely upon the parents' choice to use joint custody as a part of such agreement.
(c) In its judgment, the court may supplement the agreement on issues not covered by such agreement.
§ 19-9-6. Definitions
As used in this article, the term:
(1) "Joint custody" means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the court may order joint legal custody without ordering joint physical custody.
(2) "Joint legal custody" means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
(3) "Joint physical custody" means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.
(4) "Sole custody" means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child's education, health care, and religious training, and the noncustodial parent shall have the right to visitation. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights.
§ 19-9-7. When visitation by parent who has committed acts of family violence may be awarded; conditions
(a) A court may award visitation by a parent who committed one or more acts involving family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made. In a visitation order, a court may:
(1) Order an exchange of a child to occur in a protected setting;
(2) Order visitation supervised by another person or agency;
(3) Order the perpetrator of family violence to attend and complete, to the satisfaction of the court, a certified family violence intervention program for perpetrators as defined in Article 1A of Chapter 13 of this title as a condition of the visitation;
(4) Order the perpetrator of family violence to abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance listed in Code Section 16-13-25 during the visitation and for 24 hours preceding the visitation;
(5) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation;
(6) Prohibit overnight visitation;
(7) Require a bond from the perpetrator of family violence for the return and safety of the child; and
(8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or another family or household member.
(b) Whether or not visitation is allowed, the court may order the address of the child and the victim of family violence to be kept confidential.
(c) The court shall not order an adult who is a victim of family violence to attend joint counseling with the perpetrator of family violence as a condition of receiving custody of a child or as a condition of visitation.
(d) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.
Article 2. Child Custody Intrastate Jurisdiction Act
§ 19-9-20. Short title
This article shall be known and may be cited as the "Georgia Child Custody Intrastate Jurisdiction Act of 1978."
§ 19-9-21. Purpose; construction
(a) The general purposes of this article are to:
(1) Avoid jurisdictional competition and conflict by courts within this state in matters of child custody, which have in the past resulted in the shifting of children from county to county with harmful effects on their well-being;
(2) Promote cooperation by the courts of this state, to the end that a custody decree is rendered by the court which can best decide the case in the interest of the child;
(3) Assure that litigation concerning the custody of a child ordinarily takes place in the court with which the child and his family have the closest connection and where significant evidence concerning the care, protection, training, and personal relationships of the child is most readily available and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another court of this state;
(4) Discourage continuing controversies over child custody, in the interest of greatest stability of home environment and of secure family relationships for the child;
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(6) Avoid relitigation of custody decisions of other courts in this state insofar as is feasible;
(7) Facilitate the enforcement of custody decrees;
(8) Make uniform the practice and procedure of the courts of this state in child custody matters.
(b) This article shall be construed to promote the general purposes stated in subsection (a) of this Code section.
§ 19-9-22. Definitions
As used in this article, the term:
(1) "Custody" includes visitation rights.
(2) "Legal custodian" means a person, including, but not limited to, a parent, who has been awarded permanent custody of a child by a court order. A person who has not been awarded custody of a child by court order shall not be considered as the legal custodian while exercising visitation rights. Where custody of a child is shared by two or more persons or where the time of visitation exceeds the time of custody, that person who has the majority of time of custody or visitation shall be the legal custodian.
(3) "Physical custodian" means a person, including, but not limited to, a parent, who is not the "legal custodian" of a child but who has physical custody of the child.
§ 19-9-23. Actions to obtain a change of legal custody; how and where brought; limitations
(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.
(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:
(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or
(2) In response to any other action or motion seeking to enforce a child custody order.
(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.
§ 19-9-24. Limitations on actions by physical or legal custodians
(a) A physical custodian shall not be allowed to maintain against the legal custodian any action for divorce, alimony, child custody, change of alimony, change of child custody, or change of visitation rights or any application for contempt of court so long as custody of the child is withheld from the legal custodian in violation of the custody order.
(b) A legal custodian shall not be allowed to maintain any action for divorce, alimony, child custody, change of alimony, change of child custody, or change of visitation rights or any application for contempt of court so long as visitation rights are withheld in violation of the custody order.
Article 3. Uniform Child Custody Jurisdiction and Enforcement Act (Refs & Annos)
Part 1. General Provisions
§ 19-9-40. Short title
This article may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."
§ 19-9-41. Definitions
In this article:
(1) "Abandoned" means left without provision for reasonable and necessary care or supervision.
(2) "Child" means an individual who has not attained 18 years of age.
(3) "Child custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligations of an individual.
(4) "Child custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from family violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Part 3 of this article.
(5) "Commencement" means the filing of the first pleading in a proceeding.
(6) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.
(7) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
(8) "Initial determination" means the first child custody determination concerning a particular child.
(9) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this article.
(10) "Issuing state" means the state in which a child custody determination is made.
(11) "Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
(12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.
(13) "Person acting as a parent" means a person, other than a parent, who:
(A) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
(B) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
(14) "Physical custody" means the physical care and supervision of a child.
(15) "State" means a state of the
(16) "Tribe" means an Indian tribe or band or Alaskan Native village which is recognized by federal law or formally acknowledged by a state.
(17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.
§ 19-9-42. Proceedings governed by other law
This article does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
§ 19-9-43. Application to Indian tribes
(a) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. Section 1901 et seq., is not subject to this article to the extent that it is governed by the Indian Child Welfare Act.
(b) A court of this state shall treat a tribe as if it were a state of the
(c) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced under Part 3 of this article.
§ 19-9-44. International application
(a) A court of this state shall treat a foreign country as if it were a state of the
(b) Except as otherwise provided in subsection (c) of this Code section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced under Part 3 of this article.
(c) A court of this state need not apply this article if the child custody law of a foreign country violates fundamental principles of human rights.
§ 19-9-45. Effect of child custody determination
A child custody determination made by a court of this state that had jurisdiction under this article binds all persons who have been served in accordance with the laws of this state or notified in accordance with Code Section 19-9-47 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
§ 19-9-46. Priority
If a question of existence or exercise of jurisdiction under this article is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.
§ 19-9-47. Notice to persons outside state
(a) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
(b) Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.
(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.
§ 19-9-48. Appearance and limited immunity
(a) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.
(b) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
(c) The immunity granted by subsection (a) of this Code section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this article committed by an individual while present in this state.
§ 19-9-49. Communication between courts
(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this article and concerning any proceeding or court order in another state relating to family violence. A court of this state may consult any state or national registry of court orders relating to family violence with regard to any party.
(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
(c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
(d) Except as otherwise provided in subsection (c) of this Code section, a record must be made of any communication under this Code section. The parties must be informed promptly of the communication and granted access to the record.
(e) For the purposes of this Code section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
§ 19-9-50. Taking testimony in another state
(a) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.
(b) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
(c) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.
§ 19-9-51. Cooperation between courts; preservation of records
(a) A court of this state may request the appropriate court of another state to:
(1) Hold an evidentiary hearing;
(2) Order a person to produce or give evidence pursuant to procedures of that state;
(3) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
(4) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
(5) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
(b) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (a) of this Code section.
(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this Code section may be assessed against the parties according to the law of this state.
(d) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.
§§ 19-9-52 to 19-9-60. Repealed by Laws 2001, p. 129, § 1, eff. April 7, 2001
§§ 19-9-52 to 19-9-60. Repealed by Laws 2001, p. 129, § 1, eff. April 7, 2001
Part 2. Jurisdiction
§ 19-9-61. Initial child custody jurisdiction
(a) Except as otherwise provided in Code Section 19-9-64, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Code Section 19-9-67 or 19-9-68 and:
(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Code Section 19-9-67 or 19-9-68; or
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) of this subsection.
(b) Subsection (a) of this Code section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
§ 19-9-62. Exclusive, continuing jurisdiction
(a) Except as otherwise provided in Code Section 19-9-64, a court of this state which has made a child custody determination consistent with Code Section 19-9-61 or 19-9-63 has exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child nor the child's parents or any person acting as a parent has a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that neither the child nor the child's parents or any person acting as a parent presently resides in this state.
(b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this Code section may modify that determination only if it has jurisdiction to make an initial determination under Code Section 19-9-61.
§ 19-9-63. Jurisdiction to modify determination
Except as otherwise provided in Code Section 19-9-64, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Code Section 19-9-62 or that a court of this state would be a more convenient forum under Code Section 19-9-67; or
(2) A court of this state or a court of the other state determines that neither the child nor the child's parents or any person acting as a parent presently resides in the other state.
§ 19-9-64. Temporary emergency jurisdiction
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child custody determination that is entitled to be enforced under this article and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Code Sections 19- 9-61 to 19-9-63, a child custody determination made under this Code section remains in effect until an order is obtained from a court of a state having jurisdiction under Code Sections 19-9-61 to 19-9-63. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Code Sections 19-9-61 to 19-9-63, a child custody determination made under this Code section becomes a final determination, if it so provides and this state becomes the home state of the child.
(c) If there is a previous child custody determination that is entitled to be enforced under this article, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Code Sections 19-9-61 and 19-9-63, any order issued by a court of this state under this Code section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Code Sections 19-9-61 to 19-9-63. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(d) A court of this state which has been asked to make a child custody determination under this Code section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Code Sections 19-9-61 to 19-9-63, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Code Sections 19-9- 61 to 19-9-63, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this Code section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
§ 19-9-65. Notice; opportunity to be heard; joinder
(a) Before a child custody determination is made under this article, notice and an opportunity to be heard in accordance with the standards of Code Section 19-9-47 must be given to all persons entitled to notice under the law of this state as in a child custody proceeding between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
(b) This article does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
(c) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this article are governed by the law of this state as in child custody proceedings between residents of this state.
§ 19-9-66. Simultaneous proceedings
(a) Except as otherwise provided in Code Section 19-9-64, a court of this state may not exercise its jurisdiction under this part if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article; unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Code Section 19-9-67.
(b) Except as otherwise provided in Code Section 19-9-64, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Code Section 19-9-69. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this article, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
(c) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
(1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
(2) Enjoin the parties from continuing with the proceeding for enforcement; or
(3) Proceed with the modification under conditions it considers appropriate.
§ 19-9-67. Inconvenient forum
(a) A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
§ 19-9-68. Jurisdiction declined by reason of conduct
(a) Except as otherwise provided in Code Section 19-9-64 or by any other law of this state, if a court of this state has jurisdiction under this article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(2) A court of the state otherwise having jurisdiction under Code Sections 19-9-61 to 19-9-63 determines that this state is a more appropriate forum under Code Section 19-9-67; or
(3) No court of any other state would have jurisdiction under the criteria specified in Code Sections 19-9-61 to 19-9-63.
(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a) of this Code section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under Code Sections 19-9-61 to 19-9-63.
(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this Code section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this article.
§ 19-9-69. Information to be submitted to court
(a) In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to family violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
(b) If the information required by subsection (a) of this Code section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
(c) If the declaration as to any of the items described in paragraphs (1) through (3) of subsection (a) of this Code section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
(e) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
(f) In providing the information required by subsection (a) of this Code section, a party who is disclosing that the child is or has been a resident of a family violence shelter shall provide only the name of the shelter and the state in which the shelter is located to avoid a violation of Code Section 19-13-23. A disclosure of the name of the shelter and the state in which the shelter is located shall be sufficient for the purposes of subsection (a) of this Code section.
§ 19-9-70. Appearance of parties and child
(a) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.
(b) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to Code Section 19-9-47 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this Code section.
(d) If a party to a child custody proceeding who is outside this state is directed to appear under subsection (b) of this Code section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.
Part 3. Jurisdiction and Enforcement of Foreign Decrees
§ 19-9-81. Definitions
As used in this part, the term:
(1) "Petitioner" means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
(2) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
§ 19-9-82. Enforcement under Hague Convention
Under this part a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.
§ 19-9-83. Duty to enforce
(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article.
(b) A court of this state may utilize any remedy available under other laws of this state to enforce a child custody determination made by a court of another state. The remedies provided in this part are cumulative and do not affect the availability of other remedies to enforce a child custody determination.
§ 19-9-84. Temporary visitation
(a) A court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:
(1) A visitation schedule made by a court of another state; or
(2) The visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
(b) If a court of this state makes an order under paragraph (2) of subsection (a) of this Code section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in Part 2 of this article. The order remains in effect until an order is obtained from the other court or the period expires.
(c) If a court of another state or a court of this state has made a finding of family violence on the part of either parent of the child, in issuing a temporary order enforcing a visitation schedule or the visitation provisions of a child custody determination of another state in accordance with subsection (a) of this Code section, a court of this state may enter any orders necessary to ensure the safety of the child and of any person who has been the victim of family violence, including but not limited to an order for supervised visitation pursuant to Code Section 19-9-7.
§ 19-9-85. Registration of child custody determination
(a) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the superior court in the appropriate venue in this state:
(1) A letter or other document requesting registration;
(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
(3) Except as otherwise provided in Code Section 19-9-69, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
(b) On receipt of the documents required by subsection (a) of this Code section, the registering court shall:
(1) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
(2) Serve notice upon the persons named pursuant to paragraph (3) of subsection (a) of this Code section and provide them with an opportunity to contest the registration in accordance with this Code section.
(c) The notice required by paragraph (2) of subsection (b) of this Code section must state that:
(1) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
(2) A hearing to contest the validity of the registered determination must be requested within 20 days after service of notice; and
(3) Failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
(d) A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(1) The issuing court did not have jurisdiction under Part 2 of this article;
(2) The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Part 2 of this article; or
(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Code Section 19-9-47 in the proceedings before the court that issued the order for which registration is sought.
(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law, and the person requesting registration and all persons served must be notified of the confirmation.
(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
§ 19-9-86. Enforcement of registered determination
(a) A court of this state may grant any relief normally available under the laws of this state to enforce a registered child custody determination made by a court of another state.
(b) A court of this state shall recognize and enforce, but may not modify, except in accordance with Part 2 of this article, a registered child custody determination of a court of another state.
§ 19-9-87. Simultaneous proceedings
If a proceeding for enforcement under this part is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under Part 2 of this article, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.
§ 19-9-88. Expedited enforcement of child custody determination
(a) A petition under this part must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
(b) A petition for enforcement of a child custody determination must state:
(1) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
(2) Whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this article and, if so, identify the court, the case number, and the nature of the proceeding;
(3) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to family violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
(4) The present physical address of the child and the respondent, if known, except in cases involving a parent who has been the subject of a finding of family violence by a court of this state or another state;
(5) Whether relief in addition to the immediate physical custody of the child and attorney's fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
(6) If the child custody determination has been registered and confirmed under Code Section 19-9-85, the date and place of registration.
(c) If a party alleges in an affidavit or pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of information required by this Code section, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
(d) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
(e) An order issued under subsection (d) of this Code section must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under Code Section 19-9- 92, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
(1) The child custody determination has not been registered and confirmed under Code Section 19-9-85 and that:
(A) The issuing court did not have jurisdiction under Part 2 of this article;
(B) The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under Part 2 of this article;
(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of Code Section 19-9-47, in the proceedings before the court that issued the order for which enforcement is sought; or
(2) The child custody determination for which enforcement is sought was registered and confirmed under Code Section 19-9-85, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Part 2 of this article.
§ 19-9-89. Service of petition and order
Except as otherwise provided in Code Section 19-9-91, the petition and order must be served, by any method authorized by the laws of this state, upon respondent and any person who has physical custody of the child.
§ 19-9-90. Hearing and order
(a) Unless the court issues a temporary emergency order pursuant to Code Section 19-9-64, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
(1) The child custody determination has not been registered and confirmed under Code Section 19-9-85 and that:
(A) The issuing court did not have jurisdiction under Part 2 of this article;
(B) The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Part 2 of this article; or
(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of Code Section 19-9-47, in the proceedings before the court that issued the order for which enforcement is sought; or
(2) The child custody determination for which enforcement is sought was registered and confirmed under Code Section 19-9-85 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Part 2 of this article.
(b) The court shall award the fees, costs, and expenses authorized under Code Section 19-9-92 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.
(c) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
(d) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this part.
§ 19-9-91. Warrant to take physical custody of child
(a) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.
(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by subsection (b) of Code Section 19-9- 88.
(c) A warrant to take physical custody of a child must:
(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
(2) Direct law enforcement officers to take physical custody of the child immediately; and
(3) Provide for the placement of the child pending final relief.
(d) The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
(e) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.
§ 19-9-92. Costs, fees, and expenses
(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
(b) The court may not assess fees, costs, or expenses against a state unless authorized by law other than this article.
§ 19-9-93. Recognition and enforcement
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this article which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under Part 2 of this article.
§ 19-9-94. Appeals
An appeal may be taken from a final order in a proceeding under this article in accordance with expedited appellate procedures in other civil cases. Unless the court enters a temporary emergency order under Code Section 19-9-64, the enforcing court may not stay an order enforcing a child custody determination pending appeal.
§ 19-9-95. Powers of district attorney
(a) In a case arising under this article or involving the Hague Convention on the Civil Aspects of International Child Abduction, the district attorney may take any lawful action, including resort to a proceeding under this part or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
(1) An existing child custody determination;
(2) A request to do so from a court in a pending child custody proceeding;
(3) A reasonable belief that a criminal statute has been violated; or
(4) A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
(b) A district attorney acting under this Code section acts on behalf of the court and may not represent any party.
§ 19-9-96. Powers of law enforcement officer
At the request of a district attorney acting under Code Section 19-9-95, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist a district attorney with responsibilities under Code Section 19-9-95.
§ 19-9-97. Costs and expenses
If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the district attorney and law enforcement officers under Code Section 19-9-95 or 19-9-96.
Part 4. Construction
§ 19-9-101. Uniformity of construction among states
In applying and construing this uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 19-9-102. Actions commenced before effective date of law
A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before July 1, 2001, is governed by the law in effect at the time the motion or other request was made.
§ 19-9-103. Construction with Code Section 19-13-23
This article shall not be construed to repeal, amend, or impair the provisions of Code Section 19-13-23.
§ 19-9-104. Conflict with Georgia Child Custody Intrastate Jurisdiction Act of 1978
In the event of any conflict between this article and Article 2 of this chapter, the "Georgia Child Custody Intrastate Jurisdiction Act of 1978," this article shall apply.
