Child support and visitation rights are set at the time of divorce, but life circumstances can change. We can facilitate modifications to your parenting plan that will meet both your needs and your child’s.

We have handled such modifications for numerous clients and can assert your rights in a modification, or defend successfully against the action if it is not warranted.

FREQUENTLY ASKED QUESTIONS ABOUT CHILD CUSTODY, SUPPORT, & MODIFICATIONS

• Can child custody arrangements be modified?Yes, and there is no time limit for doing so, however the parent that wants the modification must be able to show that circumstances have changed since the parenting plan was set, and that the child’s well-being would be substantially enhanced by a modification. Another reason for modification may be that the primary custody holder is no longer suited to care for the child.
   

• Who gets custody of my children?
  Based on the best interests of the children, the court will decide which parent gets custody. Typically, custody is awarded to one parent, and visitations rights are given to the other. It is possible for the courts to award joint custody, in which case both parents have equal rights to make joint decisions for the child. This means that both parents must agree on those decisions. It’s a good idea to talk to a lawyer about joint custody before you pursue that option.
  
  There are two types of child custody in Georgia: legal custody and physical custody. Usually, the parents are awarded joint legal custody so that they can both make decisions about their child and both have access to medical records and education records. One parent will usually be awarded the final say in cases where the parents can’t agree, and this authority is typically given to the parent who is awarded physical custody.
  
  Physical custody is often shared as well, but usually one parent is designated as the primary physical custodian. When awarding custody, the courts evaluate many factors, but mostly who was the primary care giver to the children during the marriage.
   

• What are “joint custody” and “sole custody?”
  In Georgia, the courts usually award joint legal custody, which means that both parents share in the decision-making about their child. There are four main areas where parents share in the decision making: religious upbringing, medical care, extracurricular activities and education. In this case, even though both parents have decision-making authority about their child, the court usually awards one parent to have final decision-making authority in the event that both parents can’t agree.
  
  Joint physical custody is an arrangement where parents share parenting time equally or nearly equally, and this is awarded less often than joint legal custody. Usually, one parent will be designated as the primary custodian of the children.
  
  Sole custody is awarded even less often in either legal or physical custody. In this case, all custodial rights are granted to one parent and the other parent has no rights at all, though they must still fulfill any other obligations like child support.
   

• If I have joint-custody, do I still have to pay child support?
  Since child support is determined by income, even if parents share joint custody, one parent is often still required to pay child support to the other. The only time child support is not necessary is if both parents have equal parenting time and have equal incomes
   

• How is custody decided?
  When deciding custody arrangements, the courts evaluate the best interests of the child. Typically, some form of joint custody is granted unless one parent has been determined to be a danger to the child. The court will determine which parent has been the primary caregiver to the child, and that parent is usually given primary physical custody. Other factors may include which parent has more available time for the child, stability and the ability to provide for the child. If the child is 14 years old or older, the court may also consider the child’s preference.
   

• What is a parenting plan?
  A parenting plan is part of the final divorce decree and it addresses all of the custodial issues in the divorce. It discusses the legal custody, the physical custody, and a plan for the child’s physical care. The parenting plan should detail parenting time, visitation periods and a holiday schedule. The parenting plan should also cover access to education and healthcare records, religious upbringing and extracurricular activities, as well as which parent has the final say in decisions where the parents can’t agree.
   

• Can my child decide which parent to live with?
  Yes, if they are at least 14 years old. However, the parent not chosen by the child can contest the decision in court, and present evidence that the child’s decision isn’t in the child’s best interests. It is difficult to override the child’s decision, but it is possible.
   

• What should I do to get a larger custody agreement?
  The best way to increase your chances of more custody time is to be more involved in the life of your child. If you are there for your child’s extracurricular activities, participate in the care of your child, take them to school and other such involvement, you can demonstrate to the court that your child needs your available presence.
  
  Though you may think it’s a good idea, don’t move out of the marital residence until a custody agreement has been established. Once you move out of the home where your child resides, your parenting time becomes subject to your spouse’s discretion, and it may become more difficult to demonstrate the necessity of your presence in the child’s life.
   

• Will my child have to appear in court?
  Probably not. Most judges think negatively of a parent who asks a child to testify against the other. If the child’s voice needs to be heard in court, it’s best to use a Guardian ad Litem who can serve as the representative of the child.
   

• Will I need a Guardian ad Litem?
  A Guardian ad Litem (GAL) is an officer of the court, and their sole duty is to advise the court on the child’s best interests. A GAL does not represent either party in a divorce. Because a judge doesn’t have the time to know every detail of a child’s life to determine which parent is a better provider, a GAL is often appointed to do an investigation and make a recommendation.
  
  The GAL will spend time with the child, the parents and other people who are with the child and parents in order to get a more comprehensive understanding of the child’s best interests than what could be presented in the courtroom.
   

• What if my spouse tries to move the kids out of state?
  Neither parent can move a child out of state during the divorce process once the divorce action is filed and both parties have notice of the filing unless consent is given by the other parent. Once custody has been determined, the court can’t restrict the ability of the custodial parent to relocate, but the other parent can file for a modification of custody as this a change of circumstances that warrants a court review.
   

• Can a parent change the child’s last name?
  Not unless both parents agree. One parent cannot legally change the child’s last name without the consent of the other parent.
   

• Can I receive child support? Do I have to pay child support?
  The parent that is awarded custody should receive child support from the other parent. In the event that the child was born out of wedlock, the father of the child must pay child support, even if the court hasn’t ordered it or ruled on paternity or legitimation. If you’re having trouble collecting child support, contact the Offices of Child Support Services in your county.
   

• How is the amount of child support determined?
  When determining child support, the court looks at the incomes of both parents, the number of children, the cost of insurance and childcare and other expenses unique to each child. You can see more information on a brochure called “Child Support in Georgia,” which is available at the Georgia Legal Services Program office.
   

• If I have joint-custody, do I still have to pay child support?​Since child support is determined by income, even if parents share joint custody, one parent is often still required to pay child support to the other. The only time child support is not necessary is if both parents have equal parenting time and have equal incomes.
   

• Will I receive child support if I have primary custody?
  Except in rare cases where both parents share equal parenting time (joint physical custody) and generate equal incomes, child support is always awarded to the primary physical custodian. Georgia sees child support payments as a right of the child, not the custodial parent, so the court will not waive child support.
  
   

• My separate maintenance includes custody and child support, will it be included in the divorce?
  Probably. If the spouses have previously filed a separate maintenance, then the court is likely to preserve the terms of it in the event of a divorce. The spouses do have an opportunity to demonstrate a change in circumstances that warrants an update to the parenting plan.
   

• Can one parent refuse visitation rights if child support isn’t paid?
  No. Child support and visitation have no connection to each other in the eyes of the law, so one right cannot be denied if the other obligation isn’t being fulfilled.
   

• Will my child have to appear in court?
  Probably not. Most judges think negatively of a parent who asks a child to testify against the other. If the child’s voice needs to be heard in court, it’s best to use a Guardian ad Litem who can serve as the representative of the child.