Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Full Custody vs. Shared Custody and Physical Custody vs. Legal Custody

When dealing with a divorce and child custody dispute, there are many labels and terms of art that can be confusing. Oftentimes, we get asked by clients “what do I have to do to get full custody of my son or daughter”. There is a misunderstanding of custodial rights in Georgia as they apply in divorce or legitimation cases. 

First, it is very important to understand that there are two types of custody in Georgia. There is legal custody and there is physical custody. Legal custody has to do with who gets to make the major decisions in a child’s life as they grow and mature. Georgia Courts break down the major decisions into four categories that include: education; health care; extracurricular activities; and religion. Most everyone has “joint legal custody” in that the parents work together in arriving at decisions that are mutually agreeable and in the child’s best interests. However, even when parties’ share joint legal custody, it is beneficial to designate a “final-decision maker” in each of the categories to avoid protracted disputes. The final-decision making authority can be split, so that one parent can have one or more of the categories, and the other parent can have the rest. One parent can also be vested with final decision making authority in all four categories. Each case is unique, and who gets final decision making authority in what category just depends on the circumstance of each case. For example, one parent may be a teacher or a doctor, and may be better suited to make decisions regarding education or medical issues. 

In very rare cases, one parent is vested with “sole legal custody”. In this situation, the parent with sole legal custody has no legal obligation to involve the other parent in any manner whatsoever in decisions impacting the minor child. They can freely make any and all decisions in any of the four categories without notifying or consulting or involving the other parent. It is unusual that a parent would have sole legal custody, unless the other parent has not been involved in the child’s life or has demonstrated severe negligence in decision-making. 

The second type of custody in Georgia is physical custody. Physical custody has to do with where the child will physically reside each day of the calendar year. Most everyone has a shared physical custodial schedule in that sometimes the child resides at mother’s home and sometimes the child resides at father’s home. Each parenting plan is unique and there is no “one size fits all” parenting plan. Some children reside primarily with one parent, and visit the other on an every other weekend basis. Some parents have long extended every other weekends. Some parents operate under a 2-2-3 schedule where one parent has Mondays and Tuesdays, the other has Wednesdays and Thursdays, and they alternate weekends. Some parents do a week on / week off schedule. Some parents have flexibility and allow for flex days and change the schedule each week. 

It is important to note that schedules that are predictable and consistent tend to give children the best chance for success. However, every situation is unique, and sometimes parenting plans that have a great deal of flexibility and or more irregular can work better for a particular situation. Work schedules, children’s schedules, distance between the parents, ages of the children, and the relationship between the children and each parent are all factors that attorneys and judges consider in advocating for and ordering certain parenting plans.

When trying to decide whether to go for joint physical custody or sole physical custody, or whether to ask for joint legal custody with final decision making authority on some or all four categories versus sole legal custody you should consult with an attorney. You may think you have a great case for sole physical custody, but as experienced family law attorneys we can tell you what the criteria might be for a particular court or judge to award sole physical custody, and whether or not your expectations are realistic. We can also help you better understand how the court awards final decision making authority in each of the four categories, and help you strategize and plan for your case, so that you get the best possible outcome for you and your child.   

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