11 WAYS IN WHICH CHILD CUSTODY CAN BE GAINED OR LOST
In contested “child custody” actions, the court makes a determination as to “what is in the best interest of the minor child” in making a decision as to primary physical custody, as well as, legal custody.
First, “legal custody” addresses which parent may have input and/or make decisions pertaining to the following issues involving the minor child (1) education, (2) religious upbringing, (3) extracurricular activities, and (4) health/medical issues. If the parents are awarded “joint legal custody”, then BOTH parents may have input into these issues. Both parents can speak to the child’s doctor, school teacher, decide whether the child will be brought up as Christian or Muslim, etc. Both parents can decide which extracurricular activities the child can participate in (e.g., football, track, basketball, cheerleader, etc.).
Whenever the parties are awarded “joint legal custody”, one or more parent must have final decision making authority (i.e., tie-breaking authority) in the event that the parties are unable to agree on the four issues.
The parties may also agree (or the court could order) that the issues could be split between the parties. For example, the parties could agree (or the court could order) that the Father has final decision making authority on the issues of extracurricular activities and education, and the Mother has final decision making authority on the issues of religion and health/medical.
Second, “Primary physical custody”, on the other hand, addresses which parent the child will actually reside with. Now, there have been a few incidents when the parties are awarded “joint physical custody”, but this is not the norm. In one divorce action in which the parties were awarded “joint physical custody”, the parents literally lived next door to each other. In that case, the children would reside with the Mother Monday through Thursday morning and would reside with the Father Thursday after school through Sunday. To obtain “joint physical custody”, the living arrangements, school, etc. , has to make sense. The court does not want the minor child traveling all across the city to attend school with hours on the road going back and forth between parents.
Historically, it was generally viewed that the primary physical custody of the minor child should remain with the Mother. However, more and more, this is not the case. Whether primary physical custody is initially granted to the Mother or Father, a change in circumstances, proof that the custodial parent is unfit, or proof that the best interests of the minor child would be best served with the other parent, primary physical custody can be changed.
Evidence that I have presented in court in order to obtain a change in primary physical custody of the minor child on behalf of my client include the following:
(1) Relocating the minor children in violation of court ordered visitation: Questions often arise by the mother as to whether she can move out of state with the minor children. There is no law in Georgia which states the mother cannot move out of state. However, if there is a court order granting the father visitation, by voluntarily relocating the children out of state, the mother could be denying the father of his court ordered visitation. Such was the case in the Superior Court of DeKalb County. The mother voluntarily quit her job and relocated out of state. The judge was noticeably upset that she had violated the court order. Subsequently, physical custody was granted to the father.
(2) Domestic violence involving the parent: When deciding issues of custody (and even visitation), the court considers “what is in the best interest of the minor child”. If there is a history of domestic violence (especially in the presence of the child), the custodial parent stands the risk of losing custody. Such was the case recently in the Superior Court of Fulton County where the mother re-married after the relationship with the biological father ended. There were several incidents of domestic violence between the mother and her new spouse. In fact, in one such incidence of domestic violence, the mother got into a physical altercation with her new husband over the issue of a diaper. An item was thrown striking the minor child in the head. Primary physical custody was awarded to the child’s father.
In another divorce action in the Superior Court of DeKalb County, the Mother had been in a physical altercation with her mother. She was also involved in a physical altercation with her father which resulted in his arrest. Additionally, she was involved in a physical altercation with her new boyfriend. Finally, she was arrested for domestic violence against my client. She had also left a voice mail message on my client’s cell phone in which she made a verbal threat to kill him. Primary physical custody was awarded to the child’s father.
(3) Instability of the parent with primary physical custody: In deciding what is in the best interest of the minor child, the court likes to see a stable home environment. If the custodial parent is constantly relocating, changing jobs, moving the child from one school to another, these acts of instability and questionable judgment are a concern for the court. In a recent case in the Superior Court of Fulton County, the court found that it was in the best interest of the minor child that custody be changed and granted to the child’s father
(4) Inappropriate living arrangements: The living arrangements for the custodial parent is very important in the eyes of the court. The court found it troublesome recently when the mother testified that she was living in a two bedroom apartment with three adults and two children, while the biological father lived in a three bedroom home with one bedroom reserved for the minor child. Custody was awarded to the father.
(5) Criminal activity in the immediate environment: Elaborating on this issue is not necessary. If there is illegal drug activity, crime, shootings, etc., occurring in or around the residence where the custodial parent resides, there is a good chance that the non-custodial parent may prevail on a change of custody action, and so was the case in the Superior Court of DeKalb County.
(6) Incarceration of a parent on criminal charges: Clearly, if the custodial parent is incarcerated, whether waiting for trial or serving a sentence, the non-custodial parent stands a good chance of prevailing on a change of custody action, and this applies even where the non-custodial parent may be in the United States without lawful authority. When it comes to domestic issues involving minor children, the courts are not concerned about the immigration status of either party. What is in the best interest of the minor child is the controlling issue. Recently, the mother (custodial parent), a United States citizen, was incarcerated on a drug offense. The child was residing with his maternal grandparents. The grandparents attempted to control whether the father could visit with his son. Upon hearing the case, the biological father was awarded custody of the minor child, even though the biological parents were never married, and even though he (the father) was subject to possible deportation. It should also be stated that, often, the custodial parent (a U.S. citizen) will allege that primary physical custody should not be granted to the non-custodial parent due to his/her citizenship with another country, arguing the risk that the non-custodial parent will flee with the child to his/her country. Although this is a valid argument, there needs to be sufficient evidence of the threat to prevail in court.
(7) Posting inappropriate photographs online: In today’s social media frenzy, people, for some reason, feel compelled to display all aspects of their lives online. Such was the case in a recent divorce action in the Superior Court of DeKalb County. The mother loaded several photographs of herself in miniskirts and/or very short dresses taken while she was out drinking at various nightclubs. Some of her photos included pictures of herself with bottles of beer in her mouth. She added tag lines inferring that she was, “in fact”, drunk. All photographs were entered into evidence over the objections of her attorney. The court found that it was in the best interest of the minor child that custody be granted to the father.
(8) Sending text messages and instagrams: In a recent divorce action, the wife sent texts and instagrams discussing the domestic violence occurring between her and her boyfriend. She also included a photograph of her busted lip and made comments about how her boyfriend is “trying to kill me.” The text messages/instagrams were entered into evidence over the objections of her attorney. She lost primary physical custody.
(9) Lack of credibility: In a divorce action, a previously signed “Permanent Parenting Plan Order” was entered into evidence. The Permanent Parenting Plan, signed by both parties gave primary physical custody to the Father. However, during the trial of the case, the Mother alleged that she was not in her right mind when she signed the Parenting Plan. She also argued that the Parenting Plan was never filed in court. The court found her testimony not to be credible. The court also found that the Parenting Plan was a binding contract, even though it was never filed in court. There was also other testimony by the Mother which the court found not to be credible. The Mother lost primary physical custody.
(10) Adultery: Although more and more it appears that some judges are not as concerned with this issue, in a recent case in the Superior Court of Gwinnett County, a man represented himself in a contested divorce action in which the father was seeking custody of his three children. His wife was represented by an attorney. The father cried in court and told the female judge that he knew she (the judge) would rule against him because he was a man and because he did not have an attorney representing him. He alleged that his wife had an affair with her supervisor and was, in fact, pregnant by that same supervisor. The judge granted the father custody of the three minor children. The judge, further, denied any request by the wife for alimony or any other relief she had requested in her divorce action.
(11) Failing to appear at your custody hearing: I was not involved in this case. However, I recently had a conversation with a lady whose friend lost custody. She indicated to me that two (2) attorneys told her friend not to appear in court for her custody hearing. I couldn’t believe what I was hearing. If a party does not appear in court for their custody hearing, that is a clear indication to the judge that the party just doesn’t care. Accordingly, if you fail to appear at your hearing, the court will grant a default judgment to the other party, granting the relief requested by that party. Additionally, the court order will expressly mention the fact that the party failed to appear. Thus, at any subsequent hearings, the judge will review the file and the previous order noting that the party failed to appear creating instant bias against that party going forward.
Certainly this article does not address every conceivable reason why a custodial parent (typically the mother) could lose custody of the minor child; however, it sheds some light on issues to consider where a minor child is involved. For further questions or to schedule a consultation, feel free to contact my office at (404) 551-2428 or toll free at (866) 834-3762, E-mail: firstname.lastname@example.org Anthony Overton Van Johnson, Esq. VANJOHNSON LAW FIRM, LLC.