Legislation Related to Unmarried Parents
A 2014 law in Georgia is aimed at giving unmarried parents of children more access to their children when there is a dispute over legal custody of their son or daughter. Prior to July 1, 2014, there was a bias in favor of the mother having legal custody under O.C.G.A. 19-9-3, which gives preference for physical and legal custody to the legal birth mother and any other legal owner of the child.
This could lead to absurd results. A man who was married to the mother of his one year old daughter and divorced, but then marries another woman and has a child with her, could be stuck with a situation that he has no real legal relationship with his first child unless genetic paternity tests are conducted. So, if you were married once, divorced, married again, divorced again and had a child with the second marriage, you will be in the position of not having any real legal relationship with your first child.
Even when an unmarried couple has a child, the mother would not even have to tell the father the baby was born. Then, two years later, if the couple split up, the mother could move to a different state and reappear with the child without ever giving notice to the father, and cut him out of the picture completely.
The Act is found at O.C.G.A. 19-7-42. These rights, however , are only given to the unmarried father after he has established "paternity". That is accomplished by filing an action in Superior Court, and serving the mother. He may also sign an acknowledgement of paternity at the time the baby is born. Another way is to sign the Paternity Acknowledgment form that is available at the hospital after the birth. If done that way, the doctor usually signs it and the hospital keeps it on file.
After that, the father has standing to file an action to establish legal custody. Unlike a mother, an unmarried father may file only in the county where the child is living for 6 or more months, or what was the last county where the child lived for at least 6 months. (O.C.G.A. 19-9-40(a).) If there is ever a dispute about custody, it can only be filed in those two counties.
It is a good idea for unmarried parents to get an Acknowledgment of Parentage signed at the time of birth. Even if the parents are not planning on breaking up, it is a good idea because if they do break up, the mother or the father will not be able to block access to the baby by the other parent.
If the Acknowledgment is signed at the time of the birth, then it is possible for a father to file an action for divorce without having to file a separate petition to establish paternity.
Forms of Custody in Georgia
When it comes to custody arrangements for unmarried parents in Georgia, the options largely mirror those available to married parents going through divorce. The law generally encourages joint custody arrangements that divide responsibilities equitably between both parents. However, the state’s focus is squarely on the best interests of the child when applying this rule. For many families, and in the eyes of the law, the ideal arrangement is for parents to find a way to work together for the well-being of their child.
Still, joint custody is not the only arrangement the courts consider when assigning custody. Parents can also assume sole custody or find ways to share custody equally between themselves. When statutes offer examples of divisions between parents, they tend to further illustrate the idea that the child’s best interests, rather than parental disagreements, should drive the ideal arrangement:
Joint custody is the most common type and typically reflects decisions about how to divide parenting time. In this situation, parents agree to work together equally to care for the child. This might mean a relatively equal split in time spent with each parent or another joint arrangement that divvies up time in a way that suits the family.
Joint custody does not always translate into equal time with children, and it also means parents must work together to make every decision. From education to health care to religion, joint custody could essentially require an equal division of interests, as well. However, if parents cannot agree, the courts will decide what is best for the children and may even assign sole custody to just one parent.
Sole custody applies when one parent raises the child without the support of the other parent or a shared responsibility for care. The court might award sole custody based on a variety of factors, such as criminal history, abuse or neglect. When one parent offers a stable lifestyle in a safe environment, sole custody might be assigned to that parent.
Single custody is a rarer arrangement and almost always applies only to the custodial parent. The child remains with that parent while the non-custodial parent maintains no legal authority to make decisions. In theory, the non-custodial parent’s rights are limited entirely to visitation.
In contrast, split custody assigns custody of some children to one parent, while other siblings will be assigned to the other parent. In Georgia, single custody and split custody arrangements are relatively rare and apply in only a handful of cases where special circumstances call for them.
When parents go to court for custody determinations, they might opt for joint custody or sole custody. In either case, parents must also devise a visitation agreement that legally affords the non-custodial parent the right to spend time with the child. The terms of this agreement will include minimum visitation requirements, which the courts set forth in statutes.
The specific nature of visitation will vary largely by the age of the child, with more freedoms afforded to older children. At age 18, Georgia courts offer no restriction on visitation, although there is no guarantee about how much time a child will spend with the non-custodial parent.
Acknowledgment of Paternity in Georgia
Georgia law will not give an unmarried father visitation or custody rights until paternity, or the father-child relationship, is first established between the unwed parents.* There are two ways to establish paternity in Georgia: 1) if both parents agree that a father-and-child relationship exists, they can fill out and file a Voluntary Paternity Acknowledgment Form; 2) if the parents fail to fill out the form, a court hearing can establish paternity.
A General State Law Presumption
Pursuant to O.C.G.A. § 24-4-401, under Georgia law a general presumption exists that if a man and a woman are cohabitating (living together) at the time of birth of a child, that the man is the natural father. If this fact exists, unless there is evidence otherwise, the law will presume he is the child’s legal father. This is true even if the couple is not married.
The Acknowledgment Process
If both parents agree to acknowledge paternity, they enroll in a "voluntary acknowledgment paternity program" provided by the Department of Human Services. Pursuant to O.C.G.A. § 19-7-36, the child’s parents must enroll in an "IMO (in the matter of ) the adoption of" "voluntary paternity acknowledgment program" and then file a properly filled out Acknowledgment Agreement signed by both parents with the Probate Court.
A Court Hearing to Establish Paternity
Even though many men will be willing to acknowledge their fatherhood via the voluntary paternity program, sometimes a father is unavailable to complete the form or another issue exists that requires a court hearing to establish paternity. For example, a father may be in jail, imprisoned, in service, or has died during the pregnancy or birth leaving behind a dispute about who exactly was the father (a medical condition of the mother at the time of conception may create such a dispute). Also, even when the voluntary paternity program is used, a father may still choose to go to court to make sure a judge gives him his due visitation and/or custody rights. If the parents do not sign an Acknowledgment Agreement because one of them refuses to do so or the information filled out is disputed, or they enroll in the voluntary paternity program but then refuse to acknowledgment, then either parent may bring suit in Superior Court to enforce visitation and/or custody rights or the district attorney can initiate the action for purpose of the child’s well-being.
Defenses Available To A Father
A father can raise defenses in response to an allegation that he is the father of the child: • A father can raise rebuttals to an allegation of paternity by showing, through DNA testing by an approved facility, by reputable medical laboratory, by a preponderance of the evidence that he is not the child’s father. • If he proves, by a preponderance of the evidence that he is not the child’s father, and the mother was cohabiting with another man at the time of conception, or the contracting father was not married to the mother at the time of conception or a period of 300 days before the birth of the child, then the paternity lawsuit will be dismissed. • DNA may be obtained from a non-party’s blood sample if they are deceased, in an institution for the mentally ill, or cannot give a specimen due to specific physical disabilities.
Considerations for Child Custody
When unmarried parents are in a relationship, a child’s custody may eventually need to be established. Should the relationship end, then the best interest of the child will be the deciding factor in the court’s decision on who obtains full legal and physical custody.
To determine who is most fit to care for the child, Georgia courts differentiate between legal and physical custody. Legal custody grants a parent the right to make decisions, including medical, educational and religious decisions, regarding the child. Physical custody means that the child lives with the parent on a full-time basis, although that can also be split between parents through a shared parenting arrangement.
When determining custody, courts consider factors such as:
How much time each parent spends physically with the child
The strength of your parental relationship with your child
Each parent’s capacity to provide for the child’s emotional and physical needs
The ability of the child to have consistent schooling and recreation
And the community record of each parent (i.e., child abuse or domestic violence allegations)
It’s worth noting that all things are considered by the courts in order to determine who is fit to obtain custody of the child.
Changing A Custody Order
A request for modification of an existing Court order regarding custody and/or parenting time is set forth at O.C.G.A. § 19-9-3(b), which is as follows:
(b) No final judgment or order providing for custody shall be modified unless the petition to modify is filed and served upon the other party:
(1) In cases in which a child had been in the temporary custody of a person, other than a parent, that parent shall not be entitled to a hearing to contest permanent custody until such time as the foster care system seeks to return custody to the biological parent upon his or her substantive compliance with the requirements of the case plan; or
(2) Upon proof of a material change in the circumstances since the previous judgment or order so that the contested action would be in the best interest of the child.
What constitutes a "material change of circumstances" is not set forth under Georgia law. Rather, the trial Courts are given wide discretion, subject to the abuse of discretion standard, in determining whether or not a "material change of circumstances" has taken place . Furthermore, in Georgia, there is a presumption that the prior grant of custody should not be disturbed unless there is a showing of a material change of circumstances and that such change has materially adversely affected the child. The trial Court must consider the effect of the alleged change of circumstances on the welfare and interest of the child.
The modification must be premised upon a substantial visible change of conditions, affecting the welfare of the child, though these do not have to be conditions that have arisen since the custody order. A party seeking to modify an existing order must illustrate that a material change of condition affecting the best interests of the child materially and substantially occurred after the entry of the last custody order. The focus of the modification must be on the child’s needs not being met.
Such cases can also be highly fact sensitive and you should consult with an experienced family law attorney familiar with questions regarding modification of custody before making your decision.
Moving to Another State with Your Child
Many parents are simply unaware that relocating with a child may have serious legal, psychological, and emotional consequences on the child. Even when a child is very young, or even as an infant, relocating to a new part of the country can be very difficult. As a child gets older, the problems may worsen. Young children and infants may go through severe attachment times that can be emotionally damaging if the child is moved away from his or her attachment parent. Older children may be severely disturbed over such a situation. The point is that there may be severe, long-term psychological damage to the child as a result of simply relocating to a new area. Sometimes a voluntary move by an unmarried mother with a child can prompt the child’s father to seek to establish a visitation schedule and/or even custody of the child. In Georgia, a parent may move without permission of the other, provided the moving parent informs the other parent about the relocation at least 30 days in advance. There could be legal grounds for finding that an unmarried father has abandoned his parental rights if he still has not acted to exercise visitation over the child after the move takes place. The Georgia appellate courts have ruled that "it would hardly be equitable to find abandonment when no opportunity to exercise visitation has been presented in the first place." The legal rights relating to custody and visitation of children are always based on the best interests of the child. If a single mother moves away without informing the father, and he has not acted to seek custody, the court could find the move was in the best interest of the child, provided there were no other issues, such as safety, that existed. The visitation statutes direct Georgia courts to consider the child’s emotional, physical and developmental needs when deciding custody and visitation issues. If and when it becomes apparent that a parent will be moving to a different state with the child, Georgia law would entitle the non-moving parent to file a petition with the court to seek an order prohibiting the child from leaving the jurisdiction, or to ask for the return of any child who has already left the jurisdiction. Under Georgia law, the court would look at such factors as: whether the child has lived in the new location for an established period; and what kind of contact the child previously had with each parent.
Hiring A Lawyer for Your Custody Case
For all parents, custody disputes can be a profoundly stressful time. For this reason, it is critical to secure legal counsel to help guide them through the process of filing and litigating their case, as well as advising them on the relevant laws and matters pertaining to child custody. Many unmarried parents have questions relating to their rights. Questions such as whether they even have any rights when it comes to child custody, what options are available for obtaining legal custody , and the steps necessary for obtaining physical custody can make it appear as though the child is trapped in legal limbo. Understanding the way the law will view each party and their individual interests is essential to coming up with a successful solution to custody disputes. In Georgia, resources are available in the form of organizations such as Georgia Legal Services and the Atlanta Legal Aid Society, which works alongside the Georgia bar association to provide valuable answers to questions that parents might have on divorce, child custody and support, domestic violence, eviction, and other family law matters that are unique to Georgia residents. Your puclaic defender may also have information concerning custodial matters as it pertains to the state of Georgia.
