I recently had a lady come in because her husband was saying that he was going to have a guardian ad litem take away her custody rights. And she wanted to know what is a guardian ad litem. A guardian ad litem, in the context of divorce and family law with children, is a person that is appointed by the court to look to the best interests of the child and make a report to the judge. So that guardian ad litem can investigate the home, investigate any witnesses that know anything about the best interests of the child, look at medical records, and anything else relevant, and make a report to the judge.
The judge is not bound by that report but oftentimes will follow the recommendations. The guardian ad litem may make recommendations about custody, about visitation, and/or about any kind of restrictions that need to be placed either on the child or the parents. And the court can consider that.
Will a court appoint a guardian ad litem just because someone wants it? Not always. It really depends on your judge. Some judges will always appoint when someone requests one because they feel like it takes work off of them and lets someone else do a more in depth investigation. Some judges almost always say no, just present the facts to me and I can make a determination. Those judges believe it is the parties’ responsibility to bring that information to the court and the court does not need to involve these other people.
With some courts, they have a guardian ad litem that is already under contract. Thus, any time a guardian ad litem is requested, it goes to that guardian ad litem or that guardian ad litem firm. Some courts will use CASA, which is Court Appointed Special Advocate, which are volunteers that are trained to look at the best interests of the child.
A guardian ad litem can be an attorney but is not required to be an attorney. Sometimes the court appoint social workers or the CASA volunteers. So, it just really depends on your court system and your judge as to who would be appointed if a guardian ad litem is appointed.
And it is important to note, that once a guardian ad litem is appointed by the judge, you cannot fire that guardian ad litem. As such, you need to do your best to cooperate with that guardian ad litem and provide them all of the information that they need. And I'll do another video/blog on how to prepare and do that in the most appropriate way.
The advantages are that they can do an in-depth research investigation for the best interests of your child. One of the downsides is that it may be expensive. Sometimes in those situations where the court has a contract guardian ad litem person or firm that does their guardian ad litem work, the county may pay for that. But in other situations, the parties must pay for it. And it can get expensive depending on how much time is involved. Also in some situations it is a combination of both. The county pays for part, and the parties are required to pay for another part.
I hope that cleared up any questions that you might have about a guardian ad litem. If you think it will help someone else, please share. And if you would like more information about divorce and family law in Georgia, please subscribe to myYouTube channel.
I'm often asked about a standard visitation. What I tell them is although in some courts something is considered standard, in another court, that might not be standard. But generally a standard visitation is alternating weekends, alternating holidays, and then some time in the summer. But that can vary greatly.
For example, alternating weekends could be just every other weekend, or it could be set out like first and third for one parent and second and fourth for the other parent and then you alternate the fifth weekends that occur four times during the year. There are advantages and disadvantages to each. If you choose the numbered weekends, then it's easy if things get confused to look at a calendar and determine which weekend of the month it is. Whereas if it is every other weekend, then you have to pull your calendar out and go back to the very beginning and start calculating every other weekend. But some people think every other weekend is more fair. Then they don't have to keep up with those fifth weekends. Or they may have a job where they work every other weekend.
When alternating holidays, sometimes what is considered a holiday for visitation purposes becomes a big issue. Generally, I find the more specific someone is about including every single holiday, the more difficult it is to keep track of. For example, the child's birthday and the parents birthdays, those don't always fall on the same day of the week or on a weekend. If school is in session, then those things become problematic. Most of the time, I recommend that you just consider that a birthday season and you celebrate either the weekend before or the weekend after, whenever it is that you have visitation. But your situation may be different. You may live far apart and that may be an important time. If so, you just need to discuss that with your attorney.
There are multiple ways to handle summer visitation. Some people prefer a standard two weeks where each parent gets a set of two weeks that they get to visit with the child in the summer and otherwise they do the every other weekend. Some people alternate week on week off. Some people take a whole month. It really just depends on your situation.
And then you also have judges’ preferences. You may have one judge that prefers to do some kind of a standard where weekend visitation is from Thursday after school until the child is returned to school on the following Monday. While other judges say absolutely not. They prefer a a standard Friday at six to Sunday at six. Therefore, it helps if you know which judge has the case.
Additionally, a standard visitation is not appropriate for everyone. For example, if you have a parent that works every single weekend. Then every other weekend visitation doesn't make sense. Maybe that parent is off every Tuesday and Wednesday and so for them, their weekends may be the Tuesday and Wednesday. Or you may have a firefighter that has a schedule that rotates. But that parent may know their schedule a month in advance. In that situation you might have an agreement where that parent has to provide at least 30 days notice before exercising visitation for the next month, but they get a certain number of days or overnights. Thus, even though people ask for a standard visitation, a standard may not apply in their situation. It is best to talk to your attorney.
There are many visitations plans on the internet. You can take a look at them to see if any of those work for you.
I hope this helped explain what a standard visitation is. If you think it will help someone that you know, please share, and if you would like more information about divorce and family law in Georgia, please subscribe to my YouTube channel.
One of the most recurring issues for a family law attorney is complaints about interference with custody and/or visitation. These can come in many different forms, and it's frustrating, not only to the parents on the receiving end of it, but for the attorneys involved as well.
First and foremost, if there is a court order in place, either a temporary order or a final order, both parties are required to comply with the terms of that order. So, you are not supposed to engage in retaliation. If there is an issue and you cannot agree, you need to follow the court order. If the two of you want to vary something, then that's okay as long as you both agree.
Interference with visitation can take many forms.
It could be simply one parent always showing up late to deliver the child so that the other parent is just sitting there wondering if the child is coming.
It could be actual alienation of the child. That is, one parent saying things about the other parent to the child or within the child's presence. Neither party should be engaged in that. It does not matter what kind of court order is in place, neither parent should be doing that.
One parent may be scheduling excessive extracurricular activities on the other parent's custodial time, thereby diminishing the time that they have with the child and the quality of the time that they have with the child.
Maybe one parent refuses to allow phone contact with the child while the child is with them.
There are a multitude of different ways that one parent can get at another parent, using the child during custody and visitation periods. Again, neither parent should be engaged in these things.
If there is a court order in place, then maybe contempt needs to be filed to stop the interference. If there is no order in place, then maybe you need your attorney to address it with the other attorney or the other party. Or maybe you need to go to court to get an order, either a temporary or a final order.
The main thing you should remember is that you don't want to engage in any kind of negative behavior while your child is present or even within hearing distance. If you can't amicably resolve this issue with the other parent, then seek the aid of an attorney. Don't engage in any negative behavior just because they are engaged in negative behavior.
Remember, neither party is entitled to restrict visitation because the other parent didn't pay child support.
I hope this helped, give you some things to think about with regard to custody and/or visitation interference. If you think it will help someone else, please share. If you would like more information about Georgia divorce and family law, please subscribe to my YouTube channel.
I'm often asked can a child choose which parent to live with? And if so, at what age can my child choose which parent to live with? To answer the first question, in the state of Georgia, yes a child can choose.
From the ages of 11 to 14, the child can make what they call an election. They can fill out an affidavit that basically says I want to live with one parent over the other. For that age group that election is something that the court can consider. But the court is not bound at all by an election made from a child between the ages of 11 and 14. The court will still use the best interest of the child standards in determining whether or not that is in the child's best interest.
From age 14 on, a child can make that same election. But that election becomes what they call presumptive. In other words, the court presumes that is the correct place for that child unless it is not in the child's best interest. So, the court will somewhat consider the best interest of the child standards, but the child’s election carries a lot of weight with the court. In most cases, you must prove a parent is fairly unfit to overcome that election.
While children can make those elections, I would caution you. Please try not to put your children in the middle of these situations. It's very difficult for them to choose one parent over the other.
I'll never forget having a big, beefy football player who came in and made an election. He wanted to live with his dad. On the day of court, dad did not want him to be in court. But mom wanted him to be in court; so, the child sat in that courtroom. He looked over at his mom and he had huge tears that came down his eyes. Because it's very difficult to choose one parent over the other. So again, I would caution you about that.
The other thing to consider is games that are played with an election. You may have one parent that says, "If you choose to live with me, I will buy you a car or I will get you the video games." Or they offer whatever it is that is the hot button for that child. So, the child may play one parent against the other parent trying to see what would be to their advantage.
The issue for the child then is that once they make that election, they can't change that election for two years from the day that they made that election. So, they are stuck with whatever they have chosen in the election.
It is a very difficult issue to have the children in the middle of these things. So, if you don't have to have the child make an election, that's usually better for the child.
I have had other situations where the children have come in and they have definite opinion about where they want to live. And they have good factual reasons behind that election. So, in those situations, the children do not have the same emotional issues associated with choosing a parent. It's still hurtful to the other parent, but it's not like one parent is influencing the child over the other parent.
I hope this helped if you had any questions about at what age a child can choose which parent to live with in the state of Georgia. If you think it will help someone, please share and if you would like more information about divorce and family law in Georgia, please subscribe to my YouTube channel.
What is the best interest of the child standard? I know I've mentioned that in several of my previous blog posts. I have stressed that it is the standard for determining custody by the court.
So, what is it exactly? In the state of Georgia, the legislature has set out in statute, which means law, a set of factors that the court must use when they determine custody of a child.
First and foremost, there is no presumption that either parent has a superior custody right to the child. In other words, there's no favor under the law that mothers will always receive custody or that fathers will always receive custody. Additionally, there is no presumption under the law that there is any particular type of custody that is favored. So, there is no favor for sole custody or joint custody. It is completely left to the best interest of the child standard.
There are 17 factors that are listed out. So, I won't go through all 17 of those factors, but basically, they boil down to several different categories.
First would be what is best for the child as far as their stability. That is what would keep their life as normal as possible.
With regard to the parents, are they able to provide for the child physically, emotionally and financially. And with regard to financially, it does assume that there will to be child support to help support that child. The court will look at if there are any kind of violence or abuse issues that would affect the child.
They will look for stability of the child as far as school and home and friends and family. The court will look to see which parent can maintain a relationship for the child with the other parent.
If the court appoints what is called a guardian ad litem, it will consider those recommendations. A guardian ad litem is someone appointed by the court to look to the child's best interest and provide the court with a report. I will do separate blog posts on the guardian ad litem.
But the court is looking to see that the child is going to retain their bonds, especially to family, but to friends as well.
If you are interested in looking at the seventeen factors, I am sure you can find them online. Or you can talk to your attorney about it. Your attorney will help you understand what issues the judge is going to look at and try to present your favorable factors to the court so that the court can decide.
It's always a judge, never a jury, that decides anything about custody.
I hope that helped clear up some of the questions about what the best interest of the child standard is. If you think this will help someone else please share, and if you would like more information about divorce and family law in Georgia please subscribe to my YouTube channel.
What is sole custody? It's not what most people think. It does not terminate a parent's rights. It just means that one parent is going to have decision-making authority and most of the custodial time. But it does not cut out the other party from the child's life. That's a misconception.
Public policy in Georgia is it's better for a child to have a relationship with both parents.
There are some situations where sole custody is appropriate, but generally, it's not favored. But there are situations where it might be appropriate. For example, in cases of extreme alcohol or drug abuse situations that would endanger the child; then sole custody might be appropriate. Another situation where it might be appropriate would be for mental illness of the parent that causes problems for the child. Physical or sexual abuse by that parent to the child, or any other extreme behavior that causes harm to the child would also warrant consideration of a sole custody arrangement.
But sole custody does not mean that the other parent will not get visitation. They probably will get visitation unless restricted by the court. That visitation could be supervised or very limited, or it could be just a standard visitation. That would be totally up to the court. Or it could be by agreement of the parties, if the two of you can agree.
I hope this helped explain sole custody in the state of Georgia. If it will help someone that you know, please share. If you would like more information about divorce and family law in Georgia, please subscribe to my YouTube channel.
I'm often asked about joint custody. Exactly what is it? Do I want it? Is this something that the Court will order?
Generally, joint custody just means shared custody. A lot of people think that joint custody means 50/50. But it does not always mean that. In my general geographic area, I would say that that is not the standard type of joint custody awarded by the court. It can happen, but it must be the right situation. There must be two parents that can co-parent. Generally, they need to live close together so that they can get the children to and from school and activities. They must be able to work together. And the children have to be able to adapt to moving from home to home.
Even though 50/50 is not generally the most popular arrangement with the court, there are lots of forms of joint custody. It just really means shared.
Many times, that means that one parent is named the primary parent and the other is the secondary parent. Being named the primary parent generally means that you usually have 51% or more of the time with the child, your home would be designated for the child's residence as far as school purposes and doctors and that kind of thing, and you might be entitled to receive child support.
When the court is deciding on a joint custody arrangement, the court will always use the best interest of the child standards. That is true in any custody case.
I hope that this helped explain joint custody. If you think someone could use this information, please share it with them. If you'd like more information on divorce and family law in Georgia please subscribe to my YouTube channel.
What is the difference between physical custody and legal custody? Physical custody is actually having the child live with you. There are all kinds of different arrangements for physical custody and I'll discuss a lot of those in another blog. And the other part of custody is legal custody. Legal custody refers to decision making for four main areas: education, medical, religion and extracurricular activities. In addition to that decision making, legal custody is the ability to have access to the children’s records. And I'll do another video discussing those issues too.
But the main thing with any kind of custody situation is that everything must be determined based on the best interest of the child. The court has a list of factors that they go through to determine the best interests of the child.
In summary, the two different types of custody are the physical custody, that is actually having the child with you, and legal custody, which is decision making and access to records.
I hope that clears up some of those custody questions that you might have.
You may want to watch for future blogs based on the physical custody and legal custody.
I hope this helped you. If you think it will help someone going through a divorce, please share with them. If you would like more information on divorce and family law in Georgia, please subscribe to my YouTube channel.
I'm often asked, "Does it matter who files the divorce first?" In general the answer is, no. Occasionally, there are strategies involved and you would need to discuss that with your attorney. But in general, no.
There are some advantages in being the first to file. Those advantages would be sometimes the person has a psychological advantage of being the first to file. Sometimes, it gives you more time to prepare you sort of know what's coming. And for some people that's a comfort that they are not surprised with divorce filing. It gives you time for you to get documents gathered and prepared. For example, you may want to gather your wills and your deeds and any kind of financial documents. In some situations, it prevents the other spouse from hiding assets. Although if they're going to hide assets, they've already been doing that. But for some people that is a strategy.
And when you get to trial, if you go to trial, you will present your side first. So, you get the first say, that is, the first thing that the judge hears.
There are some disadvantages to being the first to file. The main one is the filing fee. It is somewhere between $250 and $300 to file the divorce and have your spouse served. And kind of the flip side to being able to go first is, if you are the one that was served, you get to go second. So you've already heard the first side's arguments and you can counter those arguments.
If you think there is a strategy to filing a divorce, you need to discuss that strategy with your attorney. But in general, there is no advantage or disadvantage in being the first to file.
I hope this helped, If you think it will help someone else please share. And if you'd like more information on divorce and family law in Georgia please subscribe to my YouTube channel.
Today I'll be giving some tips on what to do when you are served with divorce papers. I know it can be very alarming to have the sheriff show up at your door, but the first thing is, don't freak out in front of the sheriff. Don't overreact to the sheriff, he's just delivering papers.
The second thing is, don't immediately reach out to your spouse in anger. Just take a couple of deep breaths. Don't put the children in the middle of it. If they ask you what happened, just tell them it is some business that mommy or daddy needs to take care of.
Then you need to really start thinking about what you need to do. The most important thing is that you need to file an answer within 30 days. That answer lets the court know that you are present. It prevents your spouse from getting a hearing without having to provide you notice. So, the most important thing is to file your answer.
If you need an attorney to help you with filing that answer, I've done a separate video/blog on some of the things that you should consider. But you need to act pretty quickly because that answer needs to be filed within 30 days.
You may need to file a counter claim, counter claiming for divorce. Or you may want to file a motion to dismiss if it's improper jurisdiction. And you obviously want to list any kind of defenses that you have regarding any of the allegations within the complaint.
But the most important thing is to get that answer filed within 30 days, to take a deep breath, not to overreact.
I hope this helped. If you think it can help someone else, please share. And if you'd like more information on divorce and family law in Georgia, please subscribe to my channel.
Nedra K. Howard
Nedra has represented clients in matters relating to divorce, separate maintenance, child custody and support, family violence protective orders, adoption, prenuptial agreements, business disputes and litigation, personal injury, property damage, and wills.
John B. MIller & Associates, P.C.
16 Eastbrook Bend, Suite 201
Peachtree City, GA 30269
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770 - 863 - 8355