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PILLOW HAYES FAMILY LAW FAQS

YOU'VE GOT QUESTIONS. WE'VE GOT ANSWERS.

Please note, the information found in this FAQ is subject to our Disclaimer. For legal advice regarding your specific situation, please contact us.

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  • What should I do if I want to adopt a child or give up my child for adoption?
    Adoption law can be very complex, so it is best to contact a lawyer right away. A lawyer can help you navigate through the process. Contact Pillow Hayes Family Law
     

  • How can I learn about the adoption process?
    The US Department of Health and Human Services has put together an outstanding resource that can give you an overview of the process. Pillow Hayes Family Law can guide you through the process according to your unique circumstances. Contact Us.
     

  • Are there different kinds of adoption?
    ​In Georgia, there are actually six different types of adoption:
     

    • Public or private agency adoptions: The State or a private adoption agency places the child with the adoptive parents.

    • Adoptions by third parties: Someone who is not a stepparent or a relative adopts the child. These adoptions do not involve an agency.

    • Stepparent adoptions: A stepparent adopts the child.

    • Adoptions by relatives: Relatives by blood or marriage including a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle or a sister or brother of the child adopts the child.

    • Adoptions by foreign decree: The child has already been adopted in another country. The child must have a valid visa in the United States.

    • Adult adoptions: The person to be is adopted is over 18.
       

  • Who can adopt?
    ​In Georgia, there are several conditions you must meet in order to adopt a child:

    • You must have lived in Georgia for at least 6 months before filing the petition;

    • You must be at least 10 years older than the child;

    • You must be at least 25 years old unless you are married and living with your spouse;

    • If you are married, you must adopt with your spouse (unless you are the child’s stepparent); and

    • You must have the money, health and mental ability to take care of the child
       

  • Will someone inspect my home if I adopt?
    ​You must have a home investigation if:

    • you are adopting a child through an agency (Agency Adoption) or

    • if you are not related to the child you are adopting and you are not the step-parent (Third-Party Adoption).
      ​​

The judge will send someone to your home to make sure everything you said in the Petition for Adoption is accurate. They will also conduct a criminal background check on you and your spouse.
If you are the child’s stepparent or relative, the judge may decide not to send anyone to your home. Home investigations are not required in adoptions by foreign decree or adult adoptions.


The judge will send someone to your home to make sure everything you said in the Petition for Adoption is accurate. They will also conduct a criminal background check on you and your spouse.

 

  • Does the child need to agree to the adoption?
    If the child is over the age of 14, he or she must agree to the adoption in writing, and you must demonstrate to the judge at the final hearing that the child has agreed. Normally, the child must give his or her consent in front of the judge.

  • Do the biological parents need to agree to the adoption?
    Not always. In some cases, the judge may take away the rights of the biological parents if doing so is in the best interest of the child.
     

  • Can the biological parents get paid for their child?
    No, it is illegal for the adopting parents to pay the biological parents for the adoption, including money or any other valuable items or services. In fact, when the biological mother gives up her parental rights, she has to complete a Mother’s Affidavit that tells of anyone who has given or promised to give her anything valuable in connection with the adoption process. In the case of third party adoptions, the adopting parents must file a report with the court listing anything valuable they have given or promised to anyone connected with the adoption.
     

  • Can the court deny my petition for adoption?
    ​Yes, the court has the final say in whether you can adopt a child. The court may deny your petition if:

    • the adoption would not be in the child’s best interests; or

    • the legal parents have not agreed to surrender their rights to the child; or

    • there is insufficient reason to take away the rights of the legal parents.
       

  • Are records of adoption kept confidential?
    Yes, adoption records are not made available to the public. However, there are some situations when a person trying to find out about his or her biological parents, adopted siblings or their own child placed for adoption may be able to see the records.

    If you are looking for this kind of information, contact:
    Georgia Adoption Reunion Registry
    Families First/Office of Adoptions
    2 Peachtree Street, N.W.
    Suite 8-407
    Atlanta, Georgia 30303-3142

    In the Atlanta area:
    (404) 657-3555
    Outside Atlanta:
    1-888-328-0055
    www.ga-adoptionreunion.com
     

  • What about the biological father?
    If you want to adopt a child, your lawyer will search the Putative Father Registry to see if a biological father is registered for the child. If a father is registered for the child, your lawyer must tell the father about the adoption, and inform him that his parental rights will be taken away unless he files a petition to legitimate the child.

    The Putative Father Registry has information about any man who may be the biological father of a child. The Registry has the name, address, and Social Security number for two types of men:​

    • A man who says he is the father of a child in a signed writing; or

    • A man who registers to indicate the possibility that he is the father of the child.
       

A man who believes that he is or may be the biological father of a child can file that information with the Putative Father Registry, which is maintained by Vital Records. To register, contact:

Registry, Vital Records
2600 Skyland Drive
Atlanta, Georgia 30319-3640
(404) 679-4741

If a biological father is on the Registry, a court may use it to require him to pay child support.

  • Do adopted children receive any special financial benefits?
    In some situations, certain adopted children may qualify for adoption assistance benefits, which may help pay for the costs of their adoption or pay a monthly benefit to the child through Medicaid. If you are receiving Disability or Retirement benefits through Social Security, you may also qualify to receive a child’s benefit. Contact the Social Security Administration to see if you qualify.
     

  • Do adopting parents receive any special financial benefits?
    Yes, you may qualify for certain tax credits if you adopt a child, but not if you are the child’s stepparent. Most adopting parents may take the tax credit for qualifying expenses only, including adoption fees, court costs, lawyer fees, traveling costs and other costs associated with the adoption process. However, adopting a child with special needs qualifies you to receive the entire credit without the necessity of showing that your costs are qualifying expenses.
     

  • Are there any other circumstances that might affect my ability to adopt?
    Yes. When children go to another state for adoption the Interstate Compact on the Placement of Children applies.

    When the children being adopted have Native American heritage, the Indian Child Welfare Act may apply.

    If a child’s biological parents are on active duty with the military at the time of the adoption or at the time of the court case to end their rights, the Servicemembers Civil Relief Act may apply.

 

ADOPTION

LEGITIMATION & PATERNITY

 
  • What is “legitimation?”
    Legitimation is a legal process where the biological father of a child born out of wedlock becomes the child’s legal father. Prior to legitimation, the child is said to be illegitimate. Once a child has been legitimated, he or she is entitled to the same legal benefits as he or she would be if the father had been married the mother at the time of the child’s birth.

    Legitimation requires paternity to be established.
     

  • What is “paternity?”
    Paternity is the legal recognition of fatherhood. When paternity has been established, that means that a man has been legally determined to be a child’s biological father.
     

  • Why is legitimation important?
    If a child is born out of wedlock, the biological mother is the only person entitled to custody of the child under Georgia law, even if the father’s name is on the birth certificate. To have any legal rights to the child, the biological father must go through the legitimation process.
     

  • What are the benefits of legitimation?
    Legitimation offers many benefits to both the father and the child.
    For example:

    • A father can petition for custody and visitation.

    • The child can inherit from the father.

    • The child can have access to medical history from the father’s side of the family.

    • The child can be placed in the care of a relative of the father if the mother is unable to care for the child.
       

  • How to I file for legitimation?
    Legitimation can be completed within the voluntary paternity acknowledgment form. If you didn’t do this, then you must petition the court to legitimate the child. Legitimation must be filed in the mother’s county of residence through the clerk of the superior court. If the mother is out of state or cannot be located, the petition for legitimation may be filed in the father’s county of residence. If there is an open adoption preceding, the petition for legitimation must be filed in the county where the adoption is taking place.
     

  • Do I need a lawyer to establish legitimation?
    Not necessarily. You can file the petition for legitimation on your own, but it’s a good idea to consult a lawyer to make sure you’re doing it correctly. The process is typically simple, but your individual circumstances may complicate the legitimation process, such as the mother contesting the legitimation, if there has been a history of violence between you, the mother and/or the children, if the mother cannot be located or if the mother was married to someone else at the time of the child’s conception or birth.

    Pillow Hayes Family Law can help you navigate the process. Contact us for a consultation.

DIVORCE

  • Do I need a lawyer to get a divorce?
    You’re not required to have legal representation when filing for a divorce, but you should get a lawyer if you can. Divorces can be complicated, even if they’re amicable. If there are issues with property, child custody, alimony or child support, you are going to want a lawyer to ensure you are protected.

    The experienced and understanding attorneys at Pillow Hayes Family Law can guide you through the divorce process, and help you get what you’re entitled to. Contact Us.
     

  • How long do I have to live in Georgia before I can get a divorce?
    You must reside in the State of Georgia for six months before you can file for divorce in Georgia. If you live on a military base, the period is one year. If you don’t live in Georgia but your spouse does, you can file for divorce if your spouse has resided in the Georgia county in which you file for at least six months.
     

  • What is a “no-fault” divorce?
    In Georgia, you can get a divorce even if there has been no specific wrongdoing by your spouse to cause you to want one. This is called a no-fault divorce, and in this case, you only need to swear that your marriage is “irretrievably broken,” meaning that there is no hope that you and your spouse will reconcile. Either spouse can file for a no-fault divorce if you are living separately.
     

  • Can I get legally separated from my spouse?
    A legal separation without divorce is called a “separate maintenance.” A separate maintenance order can include custody, maintenance, child support and property rights much like a divorce but without complete dissolution of marriage. You are not required to get a separate maintenance before you can file for divorce.
     

  • Does Georgia recognize common law marriage?
    Not anymore. Couples who held themselves out as married before January 1, 1997 are legally considered married in Georgia, but common law marriages cannot be entered into after that date. Consequently, relationships initiated after that date do not require divorce proceedings in the event of a break up.
     

  • If I am in a common law marriage, is divorce necessary?
    Yes. If you are in a common law marriage, you are considered legally married, and must go through the legal process if you want a divorce. Because you’re considered married, any future marriages will not be legal unless you first get a divorce from your common law spouse.
     

  • Where do I file for divorce?
    You can file for divorce in the superior court of the county where your spouse lives, or in the county where you lived together.
     

  • How long will the divorce process take?
    It depends on the complexity of your divorce. If both spouses sign an agreement, the divorce can be decided in as little as a month after the divorce papers are served by one spouse to the other. However, if there is no agreement, it can take many months.
     

  • What if my spouse is abusive?
    You should talk to your lawyer or notify the court as soon as possible if there is violence in your home. You can ask the court to order your abusive spouse to stay away from you, and this will probably affect the court’s decisions about custody, visitation and alimony.

 
  • 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.
     

  • 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.
     

  • 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.

 

CHILD CUSTODY

 

CHILD SUPPORT

  • 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.

 

GRANDPARENT RIGHTS

  • Are custody and visitation rights awarded to grandparents?
    Typically, no. In Georgia, grandparents are only given custodial rights in the event that both parents are declared by the courts to be unfit, or if both parents are deceased. Outside of these two scenarios, grandparents have no rights to the children.

 

PRENUPTIAL & POSTNUPTIAL AGREEMENTS

  • What is a prenuptial agreement?
    A prenuptial agreement is a contract voluntarily entered into before a couple gets married. This contract covers the rights of each spouse in the event the marriage ends in divorce. For example, the spouses may agree that each gets to keep any property they owned before the marriage rather than that property being divided up at the time of divorce.

    Prenuptial agreements are a good idea before marriage, because spouses often feel differently during the potential acrimony of divorce. It’s best to establish the terms of divorce while you’re judgment is still clear.
     

  • What is a postnuptial agreement?
    A postnuptial agreement is just like a prenuptial agreement, except the couple enters into the contract after they are already married. If you didn’t sign a prenuptial agreement before you got married, it’s not too late. Georgia law treats prenuptial and postnuptial agreements the same.
     

  • Who should have a prenuptial agreement?
    If one or both spouses have high net worth or considerable assets before marriage, and want to keep those assets separate or ensure that they retain those assets in the event of a divorce, the couple should enter into a prenuptial or postnuptial agreement. Also, a person who has been through a prior divorce may want to enter into a prenuptial agreement to avoid further division of his or her assets in the case of another divorce.
     

  • Can a prenuptial agreement cover custody, child support and alimony?
    Prenuptial agreements can be used to establish, limit or prevent alimony obligations in the event of a divorce, but they typically don’t cover child custody or child support. This is because the court retains the authority to make custody decisions that are in the best interests of the child at the time of the divorce, which cannot be foreseen by the couple at the time of marriage.
     

  • Does each party need their own lawyer when writing a prenuptial agreement?
    Yes, each party should have their own lawyer who is working for the best interests of his or her client. A prenuptial agreement is an important contract, and your future will be shaped by it if you get a divorce. You should have your own lawyer who will make sure you’re protected.
     

  • Can a prenuptial agreement be modified later?
    Absolutely. You can have a lawyer prepare an addendum to the original contract, and once it has been signed and witnessed, it becomes part of the original contract while reflecting new terms. Many prenuptial agreements include provisions about how to cancel the contract, or an automatic cancellation of the contract after a certain period of time.
     

  • Will a prenuptial agreement cover property distribution after death?
    Property distribution after death is best covered by a will or trust, but you can include it in a prenuptial agreement if you really want to. If this is something you’re considering, you should discuss it with your lawyer to find out how to best determine the distribution of your property.