Atlanta Divorce Attorney Blog

Until a child is of the age of majority (18 years), he/she cannot choose with whom to live, absent a court order. Consider the situation of a 17-year-old child who wants to begin living with her mother, rather than her father, who has custody.

That child can "elect" to live with her mother, but in order for that election to be enforceable, the parties have to revise their Parenting Plan and have it signed off by a Judge. This can all be done by consent, but it still has to be signed off on by a Judge to make it legally binding.

If the current Parenting Plan has the father as primary physical custodian and the father is OK with the child going to live with her mother, the mother is the one that is arguably taking a risk if the Parenting Plan is not legally changed. The reason is that the father could enforce the current Parenting Plan a month later and the mother would be in contempt for failing to abide by the custody arrangements. There may be other factors to be considered as well. If you are in a situation such as the one above, your best bet would be to have a consultation with a local family law attorney so that they can ask you all relevant questions and make a informed recommendation for you.

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

The short answer to this question is possibly, but 50% is not a guarantee under any set of circumstances. Georgia is an equitable division state, which means that assets are divided equitable, not necessarily equally. What is "equitable" depends upon the specific facts and circumstances of each case.

One of the factors to look at is how much in the way of marital funds have been put into the house, including mortgage payments. In other words, if he bought the house with no money down, but made all the mortgage payments while you were married, then you have an argument that all of the equity in the house is marital because he invested marital funds into the house. However, if he made a down payment on the house when he purchased it (before the marriage), the situation gets trickier. In that case, you would not be entitled to the portion he put down, but you may be entitled to an equitable portion of the remainder, assuming you could prove that the mortgage payments were made with marital funds. If you are in a situation requiring a potentially complicated calculation such as this one, I recommend consulting with an experienced family law attorney.

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

Obtaining a passport for a minor can be overwhelming and complicated, especially when one of the parents is unavailable. One document that is needed to obtain a passport for a minor is a certified birth certificate. If the mother is the only parent on the birth certificate, then the father’s consent is not needed to obtain a passport. If both parents are listed on the birth certificate, both need to give consent, except in limited situations. This is where it can get complicated, particularly if the whereabouts of one parent are unknown, or if one parent is uncooperative. Information regarding obtaining passports for minors can be found here.

I highly recommend consulting with a local attorney who has experience with this particular issue to discuss the process in greater detail and help you obtain the necessary documentation.

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

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

In this situation, the father should immediately file for Legitimation in the county of the residence of the child, and get an initial determination of custodial rights and parenting times. In Georgia, a father who is not married to the mother at the time of the child’s birth has no rights to the child unless and until he legitimates the child. O.C.G.A. § 19-7-25. This includes custody, visitation, and the right to make any decisions concerning the child.

When the legitimation case is resolved (whether by settlement or a trial), assuming the legitimation is granted, there will be a Parenting Plan that sets forth each party’s respective parenting times with the child. It will also set forth how major decisions about the child will be made. Until there is a Court Order, however, there is not much that can be done to force the situation. With a Court Order, however, I have seen the police enforce Parenting Plans, which could help with the situation described herein.

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

Family law cases can be extremely acrimonious and, for this reason, they may drag on longer and cost more in legal fees than a party initially expected. Sometimes, a party may even be ordered to pay the opposing party’s attorney’s fees in addition to their own. In these situations, a party may get financially strapped, and desire to dismiss the case and file again later when they are financially able to do so. This may or may not solve the issue.

If you are the Petitioner in the case (meaning you filed the action), you can dismiss your petition at any time. You would then no longer continue to accrue attorney’s fees, though you would presumably still owe for work that has already been completed. You would also still owe any fees for the opposing party that had already been assessed against you. If there was a counterclaim filed, however, dismissing your petition will not dismiss the counterclaim, which means that part of the case continues, and fees will, presumably, continue to accrue for both parties. If you are the Respondent in the case (meaning the case was filed against you), you can dismiss your counterclaim (if any), but this does not dismiss the original action filed against you.

It should be noted that the opposing side has up to 45 days after the case is over (which would include a dismissal) to file a Motion for fees under OCGA §9-15-14. While Judges don’t tend to award fees under this statute, it does happen.

If you become unable to afford your own lawyer’s fees, I recommend having a meeting with your lawyer to discuss the issue.

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

In 2007, Georgia changed the child support guidelines. The old guidelines used a percentage of the payor's income. The new guidelines use an income sharing approach that takes into consideration the income of both parents. OCGA §19-6-15.

The first step in any Georgia child support calculation is to “[d]etermine the monthly gross income of both the custodial parent and noncustodial parent.” OCGA §19-6-15(b)(1). Many other factors go into determining child support, but this factor is generally most important in determining the amount of support. If the custodial parent makes more than the noncustodial parent, that will simply reduce the percentage of the total child support number owed by the noncustodial parent/payor.

The child support calculation can be complicated and confusing, especially for a person who is unfamiliar with how the calculator works. If you have an issue of child support, whether in a divorce, modification, or otherwise, you should have a consultation with a family law attorney to review these issues in greater detail, even if you plan on representing yourself.

By Patrick L. Meriwether, Partner, 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

As a seasoned family law attorney, I am often asked if a parent can get a retroactive child support modification in Georgia. For example, if one parent does not agree to the other’s request for an increase in child support, the other parent may threaten to go to court and get the child support increase retroactively, starting from the date of the original divorce decree. Fortunately, in Georgia, there are no retroactive modifications of child support so this threat holds no weight.

In Georgia, a parent can only get a child support modification going forward, from the date of the modification. The court cannot and will not modify child support from the date of the divorce decree. This is because a parent can only receive a child support modification if “there is a substantial change in either parent’s income and financial status or the needs of the child.” OCGA §19-6-15(k)(1). Any substantial change alleged, naturally, must not have existed at the time of the divorce. Thus, practically speaking, even if a parent is awarded an increase in child support, the other parent will not have to make up that difference for child support payments already made.

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