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Who Gets Physical Custody of the Children After Divorce?

Published by: Scott Spooner • On: 10-03-2016 • Under: Divorce, Family Law
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physical custody after divorceWhen Angelina Jolie filed for divorce from Brad Pitt in a California court recently, she reportedly requested sole physical custody of their six children. If she is successful, Brad’s rights and access to the children could be very limited. While we cannot speculate on the California court’s eventual decision, it is important for divorcing parents to understand their rights in a Georgia divorce involving children.

In Georgia, there are two main parts to “custody,” legal custody and physical custody.  Legal custody, in a nutshell, simply provides for certain legal rights to the children.   For example, will both parents have access to medical records and school records? In the vast majority of divorces, joint legal custody is awarded. Again, this means that both parents retain legal rights to the child. Typically, the only portion of legal custody that is debated by the parties involves decision making for the children. Most courts divide the areas of decision making into four categories (religion, extracurricular, schooling, and medical). While most parents agree, and most courts order, that the parties need to discuss these issues, someone has to make the final decision.  These categories can be divided between the parents, or it may be that one parent is the final decision maker in all areas.

When most people think of “custody,” they mean physical custody. Physical custody is the determination of where the children will live the majority of the time. While there may be numerous terms describing physical custody (sole, primary, joint, secondary), it is more important to look at actual parenting time. In nearly every divorce case with minor children, the Court will require a full schedule for the children to be submitted. The parties, or the court, will need to determine a schedule of when the children will be with each parent. It may be that the children spend alternating weekends with one parent and the majority of the rest of the time with the other parent. Special dates such as holidays, religious days, birthdays, and summer vacation must be considered.

If the parents can work out a reasonable schedule that is acceptable to both sides, in most cases, it will be accepted by the Court. If the parties can work together, it is almost always better for the children. Also, even though there is schedule in the divorce order, the parents can agree to deviate from it. For example, if the parents want to switch weekends with the children, and they both agree, they can switch weekends. The custody and visitation order is there for the times when the parents cannot agree.

When the parents cannot agree to the physical custody terms in the divorce, the custody battle begins. To protect the children’s interests, the courts may assign the children a lawyer. This guardian ad litem (from Latin, meaning guardian “for the lawsuit”) will speak with the children, visit both parents in their homes, and speak with the children’s counselors or teachers. Also, the parties may involve older children who may want their voices heard. While a custody battle is seldom recommended, there are cases when it is necessary. This can be a lengthy and expensive process, but there are few things more important than the proper determination of custody and visitation for a child.

The attorneys of Spooner & Associates can help you with a custody arrangement that is in the best interests of you and your children. While finalizing a bitter custody dispute could take many months, we can help with a temporary custody agreement and protect your right to spend time with your children in the upcoming holiday season. Call our office at (678) 714-1131 to speak with an attorney.

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Scott Spooner Scott Spooner

Scott is an attorney and founder of Spooner & Associates, PC, a family law firm focused on efficiently solving clients’ legal problems. A graduate of Georgia State University College of Law, Scott has assisted clients in metro Atlanta and Northeast Georgia courts for over 15 years. He is also a registered mediator with the Georgia Office of Dispute Resolution in the areas of domestic relations mediation, general mediation, and arbitration. In addition to representing many of his clients at divorce mediations, Scott has also served as a mediator to help other divorcing couples reach an amicable resolution.


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The information you obtain at this site is not, nor is it intended to be, legal advice. This website is designed for general information only.  You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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