December 6, 2013

Working Together with your Ex in Georgia - Children and School

In any divorce involving children, the parents have to continue to communicate and work together after the divorce is final. This is especially true regarding the children’s schooling, as this is an area of the children’s lives that each parent will likely want to be heavily involved. Even if you think that you and your ex-spouse will be able to smoothly work together and communicate on this issue, it is important to have language in your settlement agreement or Final Judgment and Decree of Divorce outlining exactly what rights each parent has.

For example, even if one parent has primary physical custody, both parents should be entitled to receive information from the school about conferences, school counseling sessions, and special events/activities so that each parent can attend such events if desired. If the school will only give the information to the primary physical custodian, that parent should make sure to pass on the information to the other parent. Often it is just forwarding an email – the parents don’t even have to speak to each other. Many schools offer parent portals for communication with the teacher and school. Both parents should have the opportunity to sign up for the portal if possible. This will ensure that no one misses out on any important information.

October 28, 2013

Child Custody in Georgia

Fighting for custody is one of the most challenging areas of family law. There are a wide variety of factors that a judge looks at when deciding custody, and a custody award may depend on which county your child lives in and which judge your case will be in front of. Custody is awarded based on a “best interests of the child” standard, and it is up to the Judge to use his/her discretion to determine “what will best promote the child’s welfare and happiness” and award custody accordingly. OCGA §19-9-3(a)(2).

There are not any hard and fast rules the Judge must abide by in making this determination. Rather, Georgia law provides a list of several factors that may be considered. These are not the only factors at which a Judge can look – any relevant factor can be considered:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent's knowledge and familiarity of the child and the child's needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

(G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;

(I) The mental and physical health of each parent;

(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;

(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.

OCGA §19-9-3(a)(3).

If you foresee getting into a highly contentious custody battle with your spouse, it would be highly beneficial to schedule a consultation with an experienced child custody lawyer to determine the first steps. A family law attorney with experience in contested custody cases can likely give you tips about the Judge who will hear your case. In addition, he/she can help you highlight certain factors (that may not be listed in the factors above) to give you the best chance of being successful in winning custody.

September 23, 2013

Divorce and Child Custody - Split the Kids?

In divorces involving children, a main issue to be decided is custody – how the parties will make decisions regarding the children after the divorce and with whom the children will live. Though every situation and family is different, most often the parents will share legal custody of the children with one parent having primary physical custody and the other parent having visitation. Nearly all of the time, the children remain together. This is not the case in a recent publicized celebrity divorce.

Celebrity event planner, David Tutera, and his former partner, Ryan Jurica, recently went through a divorce. David Tutera and His Ex Will Raise Their Twins Separately, people.com, September 13, 2013. During their relationship, they used a surrogate who was implanted with two embryos – one child was Tutera’s biological child, while the other child was Jurica’s biological child. Their break-up occurred while the surrogate was carrying the twins and they decided that they would each separately raise their own biological child after their births. The men and each of their children now live across the country from each other.

This situation is certainly unique, as the siblings never lived together outside the womb. According to the article, the men want their children to have a relationship with each other. Since these children will not grow up near each other and there is no established relationship between them, the fathers will have to work together if they truly want them to be a part of each other’s lives. This is likely easier said than done, but hopefully they can put aside their differences for the best interests of their children.

April 22, 2013

As a noncustodial parent in Georgia, do I have a right to see the notes from my child’s counseling sessions?

In Georgia, whether a noncustodial parent has a right to see notes from their child’s counseling sessions depends on the language in the parties’ parenting plan. Often, a parenting plan gives both parents the right to medical records, regardless of who is listed as the custodial parent. However, sometimes only the custodial parent can view them, particularly when that parent has sole custody of the children.

I have seen some counselors take the position that their notes relating to the child on confidential to the child and will not share them with either parent, despite language in a parenting plan. I do not believe their position is correct legally, but I have seen them take that position and had to seek court intervention to get certain documents.

If access to these notes is something that is important to you, I highly recommend having an experienced divorce attorney drafting your parenting plan. This will ensure that you have the proper language included, so you don’t run into any issues down the road.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

April 15, 2013

What rights does a man have if he was married to the mother of the child and his name is on the child’s birth certificate, but later finds out the child is not his?

If a child is born to a Husband and Wife during the marriage, the child's legal parents are the Husband and Wife. This is true regardless of whether the Husband is the biological father of the child. Thus, even if he is not the biological father of the child, the Husband still has rights regarding the child in the event of a divorce.

For example, if the Husband and Wife later were divorced and a parenting plan was put in place that set forth the Husband's custodial rights as a father, then the father could seek, and potentially be granted, primary custody of the child. If, however, the Parties set forth in their divorce decree that the Husband was not the father and did not set forth any custodial rights, then the ex-husband will not have much legal basis to seek custody. In this situation, I would recommend having a consultation with a local family law attorney.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

April 12, 2013

Tips on Preparing for a Georgia Custody Evaluation

When parents can’t agree on who should take care of the child after the divorce, a Judge will order, or the parties can consent to, a custody evaluation. The evaluation is done by a licensed psychologist and its purpose is to assist the Court in determining the best interests of the child pursuant to O.C.G.A. § 19-9-3. The following are some tips to help you prepare for a custody evaluation in Georgia:

Do not coach your child on what to say to the evaluator. The evaluator will pick up on this very quickly and it will not assist with your case.

Be on time.

Be polite and dress neatly.

Be honest and open, and do not get offended if the evaluator asks questions. Stop and think about each question, and if you do not understand feel free to ask the evaluator to re-phrase the question or clarify.

Make sure to have a list of people that you want the evaluator to talk to with phone numbers and e-mail addresses.

Keep in mind that the evaluator is looking for parenting skills like empathy, values, setting up boundaries and rules, your interactions with the child, and most importantly, your ability to co-parent.

Remember that your ex is also the mother or father of your child, and do not speak badly about them. You should keep in mind that you will have to work with this individual for the rest of your child’s life and that he or she is going to be involved with your child.

Do not involve your new spouse or new relationship in the evaluation to the extent possible. The evaluation should be about you and your child.

Do not make demands of the evaluator or expect immediate results. Evaluations can take a few months to complete so be patient and understanding.

If you have questions about a custody evaluation or about custody during a divorce, contact one of our Atlanta family law attorneys.

By Elizabeth Christen Doak, Associate Attorney, Meriwether & Tharp, LLC

April 5, 2013

What is a Georgia custody evaluation?

In Georgia, when parents can’t agree on who should take care of the child after the divorce, a Judge will order, or the parties can consent to, a custody evaluation. The evaluation is done by a licensed psychologist and its purpose is to assist the Court in determining the best interests of the child pursuant to O.C.G.A. § 19-9-3. The evaluator can appear in Court and speak to the Judge about his or her investigation as well.

The psychologist will interview both parties and the child and he or she will make a specific recommendation to the court on a custody and visitation schedule. The evaluator cannot be a psychologist who has previously seen either party or the child. The evaluation focuses on what the child’s psychological needs are and which parent will best be able to meet these needs. The evaluator can make a recommendation for joint physical custody, or can assign one parent primary custody with visitation for the other parent. The evaluator may perform personality tests, IQ tests and psychological tests to make this determination. He or she will also speak with witnesses, teachers and caregivers to assess the child’s best interests. In addition, he or she will assess the strength of the family bond including relationships with grandparents and extended family and stepsiblings, the parent’s availability and work schedule, and the Parties’ health. The evaluator might perform a home visit, but this is more common in the investigation performed by a Guardian ad Litem. The evaluator strives to be neutral and to remove the biases of gender, race and religion.

The difference between the custody evaluator and a Guardian ad Litem is that a guardian is often an attorney, and the custody evaluator is a psychologist who can assess the mental health of both parties. A Guardian ad Litem can request a custody evaluation as part of his or her investigation. Custody evaluations can be more thorough and delve into deeper family issues than a Guardian ad Litem. However, they can also cost from $3,000.00 to $10,000.00 depending on your jurisdiction and the evaluator selected.

If you have questions about a custody evaluation or about custody during a divorce, contact one of our Atlanta family law attorneys.

By Elizabeth Christen Doak, Associate Attorney, Meriwether & Tharp, LLC

March 29, 2013

Reproductive Assistance and Child Custody in Georgia

In early February, Reuters published an interesting article concerning the rights of biological and legal parents entitled “Florida Judge approves birth certificate listing three parents.” According to this article, a Miami-Dade Circuit Court Judge approved the adoption of a 22-month-old baby girl that will list three people as parents on her birth certificate: a married lesbian couple and a gay man. The judge’s decision resolves the two-year paternity fight between the couple and the man, a friend of the women who donated his sperm to father the child, but later sought a larger role in the child’s life. Although the man was not awarded custody of the child, and is not required to pay child support for the child, he was awarded visitation rights so that he could have some participation in the child’s life.

Reading this article caused me to wonder: What would happen if this situation was to occur in Georgia? After some research, I discovered the answer in Georgia’s statutory and case law concerning domestic relations. According to Georgia law, if a child is born out of wedlock, the mother of the child is entitled to the possession of the child and, being the only legally recognized parent, she exercises all the parental power. O.C.G.A. § 19-7-25. Unless the biological father undertakes the necessary step to legitimate the child and thus claim his equal, legal custodial and parental rights to the child, the mother may retain exclusive legal rights concerning the child. What this means is that unless the biological father legitimates the child, he has no legal right to custody or visitation. O.C.G.A. § 19-7-22 and Mitchell v. Ward, 231 Ga. 671 (1974). Although a biological father in entitled to initiate a petition for legitimation, there is no guarantee that a biological father’s petition for legitimation will be granted. See O.C.G.A. § 19-8-12.

Regarding the rights of a non-legitimated biological father as opposed to an adoptive parent, under prior Georgia law, a biological father who was not the legal father of the child had no standing to raise an issue of custody, and the mother’s written consent was sufficient for adoption. However, under current Georgia law, notice must be provided to biological fathers in certain circumstances, along with the opportunity for the biological father to legitimate the child. O.C.G.A. § 19-8-12. If the father fails to legitimate the child, he has no standing to object to the child’s adoption. In the Interest of A.D., 286 Ga. App. 352 (2007). On the other hand, if the biological father does legitimate the child, in a contest between him and third parties, like potential adoptive parents, his rights depend on the specific facts of the case. If the biological father does not wish to seek legal rights to the child, he may surrender all his parental rights for the purpose of an adoption, including a pre-birth surrender of rights. O.C.G.A. § 19-8-26(f).

Applying the facts above to Georgia law, is seems that in order to avoid the lengthy litigation concerning which party had recognized parental rights, the couple should have requested that their male friend surrender his parental rights prior to the birth of the child. Without this surrender, it is not clear that the couple would have defeated their male friend’s claim to parental rights to the child, especially if he successfully legitimated the child. However, has mentioned above, a biological father’s rights, as opposed to those of adoptive or prospective adoptive parents, depend on the specific facts of the case. Thus, if you are considering obtaining reproductive assistance, or if you are considering adopting a child from his or her biological parents, seek the aid and advice of an experienced family law attorney specializing in the areas of child custody and adoption.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

February 15, 2013

Joint Physical Custody in Georgia

A Georgia father recently asked me if I thought he could get joint physical custody of his children. The father had a stable job, no criminal record, his own residence, and consistent visitation with his children. All of this is a great beginning but, in Georgia, joint physical custody is dependent on a multitude of factors. A parent’s best course of action is to discuss the situation with an experienced family law attorney.



For example, where do each of the parents live? If one parent lives in Atlanta and the other lives in Macon, the parents will not get joint physical custody because the minor child has to attend school during the school year. If the parents live within a mile of each other and neither plan on moving any time in the future, the chances go up. 



Another example question: How well do the parents communicate? If the answer is that "we don't talk that much," or "she yells at me every time we see each other," then it will be harder to have joint physical custody because parents have to communicate well and often to make sure they are on the same page when it comes to parenting the child. This includes being on the same page concerning discipline, making sure homework assignments are done, and getting the child to all his or her extra curricular activities and games. 



While I know many fathers have a concern that there is an inherent bias in the Court system against fathers and joint physical custody, the problems with joint physical custody often go beyond the legal system and involve practical problems such as distance between the parties and their ability to co-parent. Joint physical custody can be a wonderful thing for the minor children, but it requires serious work on the part of the parents to make it happen.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

November 26, 2012

Managing Co-Parenting Arrangements Online

Going through a lengthy and acrimonious divorce or child custody battle is extremely difficult and taxing. However, what may be even more stressful is coordinating parenting time, visitation, decision making and other issues that go along with co-parenting with your ex-spouse or ex-partner. Often times, simple conversations regarding after school activities spiral out of control and end up as full blown arguments between the parents. This acrimony is not only harmful for the parents, but it is also extremely harmful for the children involved, who are often used as middlemen in their parents’ conflict. In response to difficulties often associated with co-parenting after the break-up of a marriage or relationship, several websites have been developed with the goal of helping parents co-parent in a way that is the most beneficial to their children.

These sites are commonly referred to as custody management sites. Custody management sites come in different varieties, and offer differing options. The more basic sites offer web based calendars and message boards, accessible only to the parents or children involved. Other, more comprehensive sites offer services ranging from document archives, virtual visitation, child expense logs, and picture galleries. These sites offer parents a less confrontational way to interact with each other in order to make decisions regarding their children. By allowing parents to simply upload their child’s report card, homework assignments or activity schedule onto an online database shared by the other parent, there is little to no opportunity for parents to have conflict. Also, since all of the information relative to the parents’ custody arrangement, like custody agreements, parenting plans, and visitation schedules may be archived on the site, each party is always aware of the agreements or rules concerning the custody arrangement.

If you are currently going through a divorce or custody battle, or if you and your co-parent have already settled your custody issues, but you would still like to take advantage of the services offered by such sites, visit one of the sites listed below. The list below is not exhaustive, but is does offer an example of the different child custody management websites available.

Ourfamilywizard.com
Divaroo.com
Sharekids.com
JointParents.com
Cofamilies.com

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC