Atlanta Divorce Attorney Blog

Although many custodial parents are frustrated by the non-custodial parent’s failure to pay child support in a timely manner, or failure to pay child support at all, one thing that the custodial parent may not do in response is withhold or deny the other parent visitation. In Georgia, visitation is not conditioned on payment of child support. Thus, if you are a custodial parent, and your non-custodial co-parent is in arrears on his or her child support obligation, it is not acceptable for you to deny that parent visitation.

Although there are some states that may make the payment of child support contingent upon visitation, or vice versa, Georgia is not one of those states. According to Georgia case law, visitation is not dependent upon the payment of child support. Griffin v. Griffin, 226 Ga. 781, 784 (1970); See also Price v. Dawkins, 242 Ga. 41 (1978); Hagstrom v. Smith, 148 Ga.App. 18 (1978). In fact, if a custodial parent does withhold visitation in reaction to a non-custodial parent’s failure to pay child support, the custodial parent may risk being found in contempt of court for failure to follow the court’s order concerning visitation.

If you are a custodial parent who is unsure how to handle a situation in which the non-custodial parent refuses to pay child support, contact our Atlanta Family Law Team. We would be glad to discuss the options that are available to you like initiating a contempt action against the obligated parent or seeking a garnishment or income deduction order against his or her salary.

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

Although you and your spouse are ending your marriage, if you have children together then you will always have a relationship--you will always be parents. It is important to remember that the children must always be the focus of the divorce, and the goal should be to minimize the impact of the divorce on your children. However, divorcing parents often disagree about parenting issues like discipline, religion, education or household responsibilities. Disagreement about parenting issues can further escalate the tension in your relationship with your spouse and can be detrimental to your children. In situations in Georgia where a majority of the conflicts during the divorce are related to the children and differences in parenting style and philosophy, a parenting coordinator can be an invaluable resource.

A parenting coordinator is a psychologist or mental health professional who can help you and your spouse discuss parenting issues, determine what an appropriate parenting schedule will be for your time with the children, and help you come to a consensus about how you will be effective co-parents in the future. He or she can help resolve parenting issues that arise during your divorce, and can help you and your partner work together to reduce your conflicts related to the children. The parenting coordinator typically does not attempt to resolve marital issues, but assists with disagreements related to parenting only.

A parenting coordinator is not a guardian ad litem, who is a representative of the Court appointed to determine the best interests of the children, but one who works directly with the parents to attempt to resolve parenting issues outside of Court. With the Court or the parties' consent, he or she may make decisions for the parties on parenting or child-rearing issues, but parenting coordinators do not give legal advice. The value of the parenting coordinator is in resolving issues outside the courtroom, and can help you set establish a working relationship that allows you and your former spouse to be effective co-parents not only until the end of the divorce, but throughout your children's lives.

If you have questions about a parenting coordinator, or if you are a parent with concerns about how to work with your spouse during the pendency of your divorce, contact Meriwether and Tharp.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

Georgia family law attorneys often deal with post-divorce custody issues. For example, sometimes, unfortunately, a parent refuses to return a child at the end of his/her visitation time. In this situation in Georgia, if the parties have been divorced in the past 3 years, there should be a Parenting Plan in place that sets forth each parent’s respective custodial times. If a parent has violated the terms of that Parenting Plan, the other parent can call the police to see if they will help enforce the Parenting Plan. If the police decline to get involved, the parent will have to file a Petition for Contempt with the Court that granted the divorce or in the county of the other parent’s residence.

If the divorce was granted more than three years ago, there should be a settlement agreement or Order from the Court setting forth each parent’s respective parenting times. In that situation, the course of action would be the same as above.

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

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final decree of divorce. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded primary physical custody of the parties’ daughter to the mother, with supervised visitation to the father. Id. The parenting plan further provided that the father’s overnight visitation must be supervised by “a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary.” Id. Under the parenting plan, the therapist had the additional authority “to determine how supervised visitation should be phased out over time and when supervision may end.” Id. The father appealed, contending that the “provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist.” Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Court held that “a self-executing change in custody/visitation that constitutes a material change, i.e. is one ‘that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,’ generally violates Georgia’s public policy founded on the best interests of the child.” Id. at 3. The responsibility for making this decision must be made by the court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father’s visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, “it is an invalid self-executing change of visitation” and must be stricken from the final divorce judgment. Id. at 4.

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

The Supreme Court of Georgia recently heard a case dealing with supervised visitation that was to be phased out through a transition period. In Sigal v. Sigal, before filing for divorce, the mother first filed a petition for separate maintenance. Sigal v. Sigal, S11F0835 (2011). In the decree from that case, the mother was granted primary custody and the father’s visitation was required to be supervised as a result of his documented drug and alcohol abuse problems. Id. at 2. The mother subsequently filed for divorce and “asserted that all issues regarding custody, visitation and support of the children were fully adjudicated in the decree of separate maintenance.” Id. The father disagreed and sought “reasonable and fair unsupervised visitation” with the children. Id. After hearing testimony from both parties, the trial court orally announced its ruling, holding that the father could have unsupervised visitation provided that he took and passed a drug test within the next 45 days and provided that the unsupervised visitation be phased in over a three month transition period. Id. at 3-4.

For reasons unknown, the final divorce decree was not entered for several months, though the visitation provision was entered nunc pro tunc from the date of the hearing. (This means that the visitation provision went into effect as of the date of the hearing, rather than the date of the final divorce decree). Id. at 4-5. As a result, the three-month transition period had already expired by the time the final decree was entered. Id.

For this reason, the mother appealed, and the Supreme Court of Georgia reversed the trial court’s ruling. The Court held that “the nunc pro tunc action as to the gradual transition provision in the decree here did not serve to conform the decree to the truth or the justice of the situation as originally intended by the trial court.” Id. at 7. “Rather, it had the exact opposite effect by eliminating the truth and justice recognized by the trial court…regarding the need of these children for a gradual transition period from supervised to unsupervised visitation with their father.” Id. at 7-8. For this reason, the trial court abused its discretion in making the visitation provision nunc pro tunc.

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 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

When divorcing parents are trying to reach an agreement on holiday visitation, the holidays most often discussed are Thanksgiving, Christmas/Winter Break, Easter/Spring Break, Mother’s Day and Father’s Day. This is not an exhaustive list of holidays, however, and there may be some additional special days that you want to discuss when working out a visitation schedule.

For example, if your extended family has a yearly reunion on July 4 each year, it may be important for you to have the children with you on this date every year, or at least as often as possible. In addition, for those families who celebrate the Jewish High Holidays, it may be important to those parents to work out an arrangement to split the holidays each year, or for each parent to have time with the children on each holiday.

Every family is different, and a holiday that is not important to one family may be very important to another, and vice versa. If a certain day means a lot to you and/or your former spouse, make sure you work out the details and include them in your settlement agreement to minimize later disagreements.

Our Atlanta divorce attorneys have recently learned of some interactive websites that may be helpful for parents sharing custody of their children in Georgia. In particular, these websites are a helpful resource for parents who are struggling to communicate effectively or just need help staying organized.

OurFamilyWizard.com, JointParents.com and ParentingTime.net offer a range of features such as a visitation calendar, an expense log, daily journal, photo sharing, and a messaging forum. Visitation calendars allow parents to easily see who has visitation and the children's schedule. The expense log tracks who incurred an expense, the type of expense, the other parent's share, and whether that expense has been paid. Journals, photo sharing, and messaging forums provide a space for parents to communicate to each other about their children's activities, progress in school, etc. All calendars, expenses, photos and messages can be kept and recorded for future reference and may be helpful if there is future litigation. Some of the websites, like OurFamilyWizard.com, provide free professional or third party accounts for attorneys, counselors, teachers, or grandparents.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC