Atlanta Divorce Attorney Blog

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

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

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

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

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

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

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

Actress Kelly Rutherford recently lost primary physical custody of her children to her ex-husband, Daniel Giersch, who currently lives in France due to the revocation of his visa. According to the Judge’s Order, as reported by TMZ.com, the children’s father was granted physical custody because “Daniel (who lives in France) has facilitated the relationship of the children with Kelly…and Kelly simply has not done so.” The Order further stated that “[e]ven while under the scrutiny of an extended trial, Kelly still has declined to demonstrate the level of commitment to facilitating the relationship that would be required of a residential parent in a relocation situation.” Though Kelly plans to appeal, it is important to note that facilitating a relationship with the other parent is an important part of working together as divorced parents.

In Georgia, custody is awarded under the “best interests of the child” standard. Under this standard, the Judge can consider any relevant factor, but is guided by a list of specific factors in the statute. OCGA §19-9-3. Specifically, the statute allows the Judge to consider “[t]he 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.” OCGA §19-9-3(a)(3)(N). Thus, if this case were in Georgia (assuming the facts in the Order are true), the outcome would likely have been the same.

Co-parenting can be one of the most difficult things to work out following a divorce. You are splitting up with your spouse, but you must communicate regularly with them regarding your children and likely see them more often that you might prefer. Often, you may have negative feelings about your former spouse, but you must refrain from sharing these feelings with your children and hindering a relationship between your children and their other parent. Though it may be hard for you, it will be even harder on the children if they have to listen to negative things about a parent, or cannot spend time with a parent. As seen in this case and under Georgia law, courts take parental alienation very seriously and will consider it in any child custoday case. Thus, if you are a custodial parent and want to remain that way, you must find a way to work with your former spouse for the benefit of your children and include the former spouse in the children's lives, even if it is difficult for you.

If you are recently divorced with children in Georgia, back to school time is a good time to pull out your Settlement Agreement or Final Divorce Decree to review the custody and visitation language. Custody and visitation arrangements are often different in the summer, when families often take vacations and children are often in camp, than during the school year. Take some time to review your document to make sure you are clear as to when the children will be with you so you can plan accordingly.

There will also be language about decision making in your Settlement Agreement or Divorce Decree. If parties have joint custody, the language often reads that the parents shall consult in an attempt to come to an agreement on decisions relating to the children; however, if they cannot come to an agreement, one parent will have final decision-making authority. Thus, one parent may have final decision making authority regarding education, and one parent may have final decision making authority regarding extracurricular activities. (The same parent may have final decision making authority over both of these items.) Just because one parent has final decision-making authority over education, however, does not mean that the other parent is not entitled to receive information from the school. In fact, the parents should request that they each receive a copy of all teacher/school correspondence, including notifications of conferences. Even if one parent has final decision-making authority, the other parent is entitled to attend all conferences and receive the same information as the parent with final decision making authority.

A new school year often includes new extracurricular activities and, therefore, new schedules for the children. Hopefully, you and your ex-spouse can work together to tweak the visitation agreement if necessary to accommodate the changes. If you and your former spouse are unable to work together and/or come to an agreement, however, you may want to consider contacting an experienced family law attorney to help with the negotiation.

Recently, the headline on all of the entertainment websites read “Tom Cruise and Katie Holmes divorcing.” As more information is released about their marriage and divorce, it is becoming apparent that Holmes and Cruise will be facing the same legal issues as the majority of divorcing couples in Georgia. One of the big questions is who will get custody of their six-year-old daughter, Suri.

It has been rumored that Katie Holmes is seeking sole legal and physical custody of Suri. Many people may be asking themselves “what is the difference between legal and physical custody?” Legal custody is basically decision making authority, while physical custody determines with which parent the children will reside on a full-time basis. OCGA §19-9-6. In many divorces in Georgia, the Husband and Wife are awarded joint legal custody of their children. With joint legal custody, both Husband and Wife must consult with one another before making major decisions regarding four major issues:

1. Education (Which school will the children attend? Will they go to private or public school?)
2. Religion (Which religion will be practiced in the house? Will the children regularly attend church?)
3. Extracurricular activities (In which extracurricular activities will the children be enrolled?)
4. Non-emergency healthcare (Who will be the children’s doctor or dentist?)

If the Husband and Wife cannot agree, either one of the parents (typically the parent who has physical custody of the children) will be the final decision maker on all issues relating to these areas. It is also not uncommon for the parents to split the final decision authority. For example, the Husband may receive final decision making authority regarding education and extracurricular activities and the Wife may receive final decision making authority regarding religion and non-emergency healthcare.

It is rumored Katie Holmes is seeking sole legal custody due to Tom Cruise’s involvement in Scientology. If Holmes is awarded sole legal custody of Suri, she will have control over which religion Suri will practice and which church she will attend. It will be interesting to see how this divorce plays out and who will be awarded custody.

By Amy Trice, Paralegal, Meriwether & Tharp, LLC