Atlanta Divorce Attorney Blog

In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In custody cases where the child is under the age of 11, the court is not required to consider the child’s desires in determining which parent will have custody.

In custody cases where the child is 11, 12 or 13 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody.” OCGA §19-9-3(a)(6). The judge still has complete discretion in making the custody determination and, though he must consider the child’s desires, “the child’s desires shall not be controlling.” Id. The determination is still based upon best interests of the child and the child’s desires are a factor to be considered in making this determination.

In custody cases where the child is 14 years of age or older, “the child shall have the right to select the parent with whom he or she desires to live.” OCGA §19-9-3(a)(5). The custody selection made by a child in this age group “shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” Id. Thus, the court will follow the election of the child, unless that election is not in the child’s best interest.

Georgia divorce attorneys are often asked whether a parent’s line of work can impact child custody. In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In determining the best interests of the child, ”the judge may consider any relevant factor.” OCGA §19-9-3(a)(3). This means that anything and everything may impact a custody determination, including a parent’s employment. For example, if you are a truck driver traveling 5 days a week, then it is not practical for you to be the primary physical custodian because you are not home most of the time. This factor will be weighed with all other factors in the determination of custody.

In Georgia, to be able to enter a valid marriage, a person must “have no living spouse of a previous unresolved marriage.” OCGA §19-3-2(3). Further, “[t]he dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.” Id. Any marriage that violates this bigamy provision is void in Georgia. OCGA §19-3-5. A Cobb County woman recently found herself on the wrong side of this law. Woman, 48, accused of bigamy, theft, by Alexis Stevens, The Atlanta Journal-Constitution, October 10, 2011. The woman married her first husband in Gwinnett County on January 16, 2004 and married her second husband on April 19, 2007 in Cobb County. Id. However, she was not divorced from her first husband until April 7, 2008. Id. Apparently, when she applied for a marriage license with her second husband, “she allegedly stated that she had been married time and that she had divorce in 2001.” Id. Interestingly, this woman’s bigamous acts were not discovered until she allegedly tried to steal a truck.

In addition to her second marriage being void under Georgia law, this woman also faces a criminal charge of bigamy. According to the criminal code, “[a] person commits the offense of bigamy when he, being married and knowing that his lawful spouse is living, marries another person or carries on a bigamous cohabitation with another person.” OCGA §16-6-20(a). If this woman is convicted of the offense of bigamy, she “shall be punished by imprisonment for not less than one nor more than ten years.” OCGA §16-6-20(c).

In Georgia, the procedure for service of process (i.e. service of divorce papers) on a party to a divorce action is the same as in any civil action in this state. According to Georgia law, “Process shall be served by: (1) The sheriff of the county where the action is brought or where the defendant is found or by such sheriff’s deputy; (2) The marshal or sheriff of the court or by such official’s deputy; (3) Any citizen of the United States specially appointed by the court for that purpose; (4) A person who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought; or (5) A certified process server under Code Section 9-11-4.1, provided that sheriff of the county for which process is to be served allows such servers to serve process in such county.” OCGA §9-11-4(c).

In divorces and other family law cases, it is often prudent to have a certified process server, rather than a marshal or sheriff, serve your spouse. A marshal or sheriff will be in uniform when serving the papers, while a certified process server is usually in plain clothes. If you are having your spouse served while he/she is at work, it will cause less of a scene for a plain-clothes person to give him/her a stack of papers rather than a uniformed officer. In addition, if your spouse is avoiding service, you can often direct a certified process server exactly where to go and when to give him the best chance of effecting service. You can even give him the make and model of your spouse’s car and a photograph of your spouse. Often, a sheriff and/or marshal is unable to give your case this extra attention that may be necessary to effect service. For the above reasons, though a certified process server is more expensive, it may be money well spent in your divorce case.

In a recent blog, we emphasized that, when going through a divorce in Georgia, it is important to understand how one holiday may mean more to one parent or family than another. This is particularly the case when it comes to religious holidays and how they are observed. Unless a spouse is particularly religious and strong in their faith, religion is not usually heavily emphasized in a divorce in Georgia. However, for some families, religion and celebrating religious holidays may be particularly important and the impact of religion on divorce must be considered.

For example, orthodox Jewish families may regularly observe the Saturday Sabbath which begins on Friday evenings and continues until Saturday evening. Some families do not use electricity or drive cars during the Sabbath. If this is the case, it is important to contemplate how telephone visitation with minor children will occur on Fridays and Saturdays and, if there is visitation scheduled, how the minor children will be transported to the other parent’s home. Spouses may also need to negotiate other aspects of such religious holidays like dietary restrictions or dress.

In cases where religion is important to one parent or the other, final decision making authority for religion or religious training may be a contentious point. It will be helpful to define what “religious training” means and whether it includes Catholic school, Sunday school, or regularly attending religious services. It is also important to determine what a more religious parent may expect from the other parent. Will both parties be required to observe dietary restrictions or dress provisions when the minor children are with each parent? When religion is an important factor in your divorce, it is better to spend the time having detailed and thorough conversations with the other parent so that clear provisions can be included in your Settlement Agreement.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

The Court of Appeals of Georgia recently heard an interesting, though extremely sad, child custody case out of Fulton County. In that case, the paternal grandparents sought custody of the two minor children after the father was brutally murdered, allegedly by the mother. Scott v. Scott, A11A1206 (2011). After the mother’s murder trial resulted in a hung jury, she filed a motion to dismiss the grandparents’ custody petition for failure to state a claim. Id. at 2. The grandparents responded that they filed the original petition because, had the mother been convicted, “the children would be without parental care and control.” Id. at 3. The trial court granted the mother’s motion to dismiss, concluding that the grandparents failed to show “by clear and convincing evidence that parental custody would harm the child and that the award of custody to the parent is not in the best interest of the child.” Id. at 4.

The Georgia Court of Appeals disagreed, holding that “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient” to withstand a motion to dismiss. Id. at 5; citing Georgia Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga. App. 834 (1986). Since the petition “gave fair notice that they sought custody of the child under OCGA §19-7-1(b.1) and 19-9-2 based upon the mother’s alleged murder of the father,” it was sufficient to survive a motion to dismiss. Id. at 5. It should be noted that this does not mean that the grandparents would necessarily win custody, but they will be given an opportunity to present their case. Since the burden to prove parental fitness is lower than the burden required to prove murder, they may be able to prove the mother unfit even though she was not convicted of the murder.

Atlanta family law attorneys are often asked about the definition of family violence, and whether they are a victim under the laws of Georgia. In Georgia, “family violence” is defined broadly. The legal definition includes an occurrence of a felony or commission of battery, simply battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. OCGA §19-13-1(1) and (2). The statute also provides for a wide range of “family” relationships that qualify, and includes “acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.” Id. This definition of family violence extends to include roommates or previous roommates.

If you feel that you have been in a family violence situation or are currently going through a family violence situation, we highly recommend that you contact our Atlanta family law attorneys to discus obtaining a temporary protective order.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

The Supreme Court of Georgia recently reversed a trial court’s ruling that a Husband had waived his right to seek a modification of his child support obligation below a specified floor. Dean v. Dean, S11A0739 (2011). In that case, the parties’ settlement agreement provided a monthly child support amount, but stated that “Husband’s child support payment would be recalculated soon after the start of each year” and that “[i]n no event shall the annual recalculation of Husband’s child support result in him paying less” that the original amount stated in the settlement agreement. Id. at 1-2.

After the Husband lost his job, he filed a petition for downward modification of child support. Id. at 2. The trial court held that the Husband did not waive his right to modify his child support obligation, but the obligation could not be reduced below the floor set by the settlement agreement. Id.

The Husband appealed and the Supreme Court of Georgia agreed, emphasizing the “straightforward rule that parties to an alimony [or child support] agreement may obtain modification unless the agreement expressly waives the right of modification by referring specifically to that right; the right to modification will be waived by agreement of the parties only in very clear waiver language which refers to the right of modification.” Id. at 1, citing Varn v. Varn, 242 Ga. 309, 311 (1978). Here, there was no express mention of a “waiver,” nor is there any “express reference to the right of alimony modification.” Id. at 3-4. Not allowing the Husband to modify below a certain floor was essentially unlawfully limiting his right to modify. The Supreme Court of Georgia, thus, found that this case required reversal.

The Supreme Court of Georgia recently addressed a divorce case where separate property was erroneously classified as marital property and equitably divided. In that case, parties were married in 1993 and divorced in 2010. Highsmith v. Highsmith, S11F1052 (2011). In its final decree of divorce, the trial court classified some of the parties’ property as separate and some as marital. Specifically, the trial court classified an investment account in the Wife’s name as marital and subject to equitable division. Id. at 1-2. After the Wife’s motion for a new trial was denied, she appealed, alleging, “the trial court erred when it improperly designated her Scottrade account as marital property…” Id. at 3.

The Supreme Court of Georgia agreed with the Wife. The evidence from the divorce trial showed that the Wife had sold a house she owned prior to the marriage and put all of the proceeds in the Scottrade account at issue, which contained $300,000. Id. At the time of the trial, the balance of this account was $74,000, due, primarily, to the fact that she withdrew a large sum from this account and placed it into a joint account for real estate investment purposes during the marriage. Id.

The Georgia Supreme Court adamantly held that “the evidence showed Wife brought the account to the marriage.” Id. at 4. Thus, “[w]hatever as left in the account at the time the marriage ended was Wife’s separate property because no marital funds were placed into the account and its value, with the exception of Wife’s removal of $210,000, rose or fell with the market rather than being thr result of any labor or investment made by the Husband or the parties together during the marriage.” Id. at 4-5. The fact that a portion of this account was placed into a joint account during the marriage did not transform the remainder of that account into marital property.