§ 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