Atlanta Divorce Attorney Blog

A judge can sometimes consider the child's choice in making a custody decision. In any contested custody case, the judge hearing and deciding the issue of custody has a duty “to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his or her award accordingly.” O.C.G.A. 19-9-3(a)(2). A factor that the judge will consider, as appropriate, is the child’s election as to which parent he would prefer to live.

In a custody case in which the child is 14 or older, “the child shall have the right to select the parent with whom he or she desires to live,” and “[t]he child's selection for purposes of custody shall be presumptive unless the parent so selected is determined [by the judge] not to be in the best interests of the child.” O.C.G.A. 19-9-3(a)(5).

In a contested custody case in which the child is between 11 and 14 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody,” and “shall have complete discretion in making this determination.” O.C.G.A. 19-9-3(a)(6). For this age group, “the child's desires shall not be controlling.” The judge is to consider the child’s desires and has discretion in how to do so, but “the best interests of the child standard shall be controlling.” O.C.G.A. 19-9-3(a)(6).

According to the child support guidelines, a parent has a duty to support a minor child “until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA 19-6-15(e). In addition, the court has the discretion to order a parent or parents “to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.” Id. Thus, parents are required to support their children until the children reach 18 years of age, so long as the child is living, and not married or emancipated. However, the court has the option to extend the support obligation. For example, if a child turns 18 in March of his senior year of high school and continues to be enrolled in school, the court can require the child support to continue until the child graduates high school, but not past the age of 20. Parents have the option of including this extension in any settlement agreement as well.

There are two kids of custody: physical custody and legal custody. Legal custody has to do with decision making regarding the children, and parents commonly share joint legal custody. Generally, with joint legal custody, day to day decisions are made by the parent with whom the children are at the time the decision is to be made. For example, if a mother has primary physical custody, but the children are with their father for the weekend, then the father is entitled to make the day to day decisions that are needed or desired during that weekend.

Decisions concerning education, health, religion and extracurricular activities are frequently treated differently. These decisions are generally considered “major decisions” which are to be discussed and agreed to by both parents. If the parents cannot agree, one parent gets ultimate decision making authority. For example, one parent could get final decision making authority for all major decisions, or the parents could split final decision making authority with one parent getting health and religion and the other parent getting education and extracurricular activities.

The Georgia Supreme Court recently heard a case wherein parties were divorced and the wife was awarded half of the husband’s 401K, which was to be paid to her via a Qualified Domestic Relations Order (“QDRO”). Killingsworth v. Killingsworth, 286 GA. 234 (2009). After the husband failed to comply with provisions of the parties' divorce decree, the wife filed a motion for contempt against him. The trial court found the husband in contempt, ordering him to pay the wife a cash sum which included the 401K funds. Id. at 235. The husband appealed, alleging that the trial court erred in requiring him to pay the 401K funds in cash, as that was an impermissible modification of the divorce decree.

The Georgia Supreme Court agreed with the husband, stating that “[a] trial court may interpret a divorce decree, or clarify a prior order or judgment, in the course of resolving contempt issues placed before it,” but that “a trial court has no power to modify the terms of a divorce decree in a contempt proceeding.” Id. at 236. The Georgia Supreme Court stated that, since the divorce decree specifically stated that the 401K funds were to be transferred to the wife via QDRO, “transmuting this award into a presently due cash obligation of $ 1,850 was ‘so contrary to the apparent intention of the original order as to amount to a modification.’” Id. The Court reversed the portion of the contempt order requiring the husband to pay the 401K funds to the wife in cash, but adamantly stated that the husband was not relieved of his obligation to transfer the funds to the wife via QDRO. Id.

Recently, the Georgia Court of Appeals affirmed the great discretion of the Dekalb County trial court in determining how to handle a father who was in contempt of his child support obligation. Henry v. Beacham, 301 Ga. App. 160 (2009). The father, who was a professional football player, had failed to make child support payments according to the trial court’s temporary order in the case. Id. at 161. In addition, the trial court found that, despite his significant income, he “had encountered financial problems over the course of his professional athletic career.” Id. In light of these facts, the trial court ordered an income deduction order and ordered that the father “fund a $ 250,000 trust, which would be invaded only in the event that [he] failed to pay his obligations.” Id. Any money remaining in the trust would be refunded to the father at the conclusion of his child support obligation.

The father was later found in contempt for failing to fund the trust and appealed, alleging that the trust was not authorized under the child support guidelines. Id. at 162. The Georgia Court of Appeals disagreed, quoting OCGA 19-6-15(c)(2)(B) which states that the trial court is authorized to order the "manner, how often, to whom, and until when the support shall be paid." Id. at 163. The Court further stated that OCGA 19-6-15, “as a whole establishes that the legislature has granted trial courts broad discretion when ruling on child support obligations based on the factors presented to the court at the time of the award.” Id. at 163. Looking at the facts of the case, the Court of Appeals found that the trial court did not abuse its discretion in ordering the father to fund a trust in case he, again, failed to satisfy his child support obligation.

In discussing a visitation arrangement with your soon to be ex-spouse, it is important to address your child’s birthday. Unfortunately, following a divorce, many parents do not have a relationship that would allow them to celebrate the child’s birthday together so they have to somehow share this important day in their child’s life. One option is for the parents to alternate years, with one parent having the child on his/her birthday in even years and the other parent having the child on his/her birthday in odd years. Another option is to split the day between the parents. For example, the child could spend the night with one parent on the night before his/her birthday and stay with that parent through lunchtime. The other parent would then have the child for the afternoon and evening of his/her birthday. This way, each parent gets quality time with the child on his/her birthday to have a party or otherwise celebrate with them.