December 9, 2013

Georgia Divorce - Winter Break

Winter break is quickly approaching and children will be out of school for a couple of weeks – what does this mean for custody/visitation? If your divorce is final, winter break visitation should be addressed in your Marital Dissolution Agreement or Final Decree of Divorce. This break is usually divided between the parents, but how it is divided likely depends on the year. For example, in odd numbered years, one parent may have the first week with the other parent having the second week. Often, the visitation exchange occurs on Christmas Day so that each parent has time with the children that day.

The arrangement described above is typical, but may not work for every family. Some families may have out of town relatives with whom they like to spend the holidays. In that situation, it may not be feasible to split Christmas Day but, rather, alternate years in which the parents have the children on Christmas. Other families don’t celebrate Christmas at all so they may divide the break according to other holidays such as Hanukkah, or just split the break evenly. Further, there may be parents who are unable to take a week off of work to spend with their children so, for these families, visitation during winter break may not differ from regular visitation, with the likely exception of Christmas and/or New Year’s Day.

If your divorce is not final and you have not yet discussed winter break with your soon-to-be ex-spouse, you should do so as soon as possible. It is recommended that you get any arrangement in writing so there is no confusion as to where the children will spend their time.

September 16, 2013

Child Custody in Georgia - Summer vs. School Year

There is often a big difference between custody and visitation arrangements in the summer and those during the school year. During the summer, the kids are not in school and many families take vacations. These custody and visitation arrangements, therefore, often allow the children to have extended time with each parent. For example, each parent may have a two-week period with the children during which that parent can take the children on vacation or just have quality time together as a family at home. For parents who live in different cities, summer is a good time for the children to spent substantial time with the noncustodial parent, since the more rigid school schedule may not allow the children to travel to see that parent very often.

During the school year, naturally, there must be a different custody and visitation arrangement to allow the children to see both parents while also meeting the demands of the school year. In addition to school schedules and obligations, children often have extracurricular activities to which they must be driven or that a parent must attend. Often, the noncustodial parent will have the children every other weekend and one night during the week. This offers consistency to the children, while allowing them time with each parent during the school year.

It is important that you consult your Final Divorce Decree or Settlement Agreement to make sure you are clear about when the children will be in your custody. A good time to pull this document out is at the beginning of the summer and the beginning of the school year as these are the times that the custody and visitation arrangements often change from what everyone has gotten used to.

If you find that the original custody and visitation arrangement is not working as well as the children grow older and their schedules change, you can always file a Petition for Modification. Hopefully, you and your ex-spouse can work together to come up with a new schedule that works for everyone. If you are unable to work together, you would be best served consulting with an experienced family law attorney to help you through the negotiation.

June 24, 2013

Child Support and Visitation

In Georgia, the duty to pay child support has nothing to do with visitation. Thus, visitation cannot be withheld for failure to pay child support. Consider a situation where a final divorce decree awarded primary physical custody to the mother, with the father paying child support and receiving generous visitation with his children. If the father falls behind on his child support obligation, he is in contempt of the court order. The proper remedy for the mother is to file a Petition for Contempt against the father.

Often times, rather than filing a Petition for Contempt, the mother may seek to “retaliate” against the father for failing to pay child support by refusing him visitation with the children. This is not a recommended remedy, as it will result in the mother also being in contempt of the court order, and the father could file a Petition for Contempt against her for failing to abide by the visitation schedule.

Conversely, if your ex-spouse is refusing to honor the visitation terms of the final divorce decree, you cannot retaliate by refusing to pay child support. While it is certainly frustrating when your ex-spouse ignores or disobeys the terms of the court order, you will look much better to the court if you come in with your hands clean and are fulfilling your obligations under the order.

December 26, 2012

In Georgia, Visitation is Not Conditioned on Payment of Child Support

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

April 20, 2012

Using a Parenting Coordinator in a Georgia Divorce

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

February 6, 2012

How to handle post-divorce custody issues in Georgia

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

January 23, 2012

Self-executing visitation provision in Georgia divorce held invalid

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.

November 25, 2011

Parenting plans in Georgia

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

November 11, 2011

Recent Georgia divorce case phases out supervised visitation through three month transition period

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.

October 28, 2011

Can my line of work affect child custody in Georgia?

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.