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Who Gets Primary Child Custody in Georgia?

by Sharon Jackson  on January 17, 2023 under 

In Georgia, a judge makes the final decision on who becomes the custodial parent based on a variety of factors. This decision happens after a trial which results if parents can’t agree on child custody. To avoid all this, before a divorce begins, it’s best for both parents to create a legal agreement between themselves so that they can ensure the best arrangements for their child. Of course, this isn’t always possible. Let’s go through how Georgia courts decide on primary child custody; perhaps we can help prevent some future custody problems for those now thinking of divorce.

Understanding What “Primary Custody” Means in Georgia

The term “primary custody” isn’t actually in Georgia law. Instead, Georgia Code Section 19-6-15 uses the term “custodial parent,” defined as the parent with whom the child lives more than 50 percent of the time. In other words, the custodial parent gets primary physical custody. The other parent – the one who gets less time with the child – is called the “non-custodial parent.”

What we commonly call “primary custody” refers only to physical custody – where the child resides and spends their time. Georgia has another type of custody called legal custody, which is the right and responsibility to make decisions for the child such as for their medical needs, schooling, and the like. It’s common for Georgia courts to award the primary physical custody to one parent but give the legal custody to both parents.

Most child custody cases in Georgia result in shared physical custody, where the custodial parent gets majority of the child’s time and the non-custodial parent gets the rest. There are, however, a few cases where one parent gets sole physical custody, which means they get 100 percent of the child’s time. It’s also possible for one parent to be awarded sole legal custody, meaning they’re the only parent who can make decisions for the child.

How Georgia Courts Decide Who Gets Primary Custody

The main goal of the court when determining child custody is ensuring the child’s “best interests.” They often award primary physical custody to the parent who’s been the “primary caregiver” of the child – the one who’s been actively attending to the child’s meals, hygiene, schooling, activities, and other day-to-day needs. However, that’s not the only determining factor for child custody. The judge has to weigh other factors such as:

  • Each parent’s bond with the child
  • Each parent’s availability and capacity to care for the child
  • Each parent’s home environment
  • Each parent’s physical and mental health
  • Any history of substance abuse or violence on either parent’s side
  • The child’s behavior towards each parent
  • The child’s special needs, if any
  • The child’s wishes, if they are 14 years old or older.

Parents seeking primary physical custody will need to convince the court that they are better suited to house the child and spend the majority of the time with them. To do this, it’s helpful to have an experienced attorney’s guidance and representation, especially in a contentious child custody battle.

Can the Child Choose Which Parent Gets Primary Custody in Georgia?

Depending on the age, a child may have a say on which parent gets primary physical custody in Georgia. A child who’s at least 11 years old may express their preference through an affidavit, and the judge must give weight to this preference. If the child is 14 years old or older, their preference becomes presumptive, meaning the judge will grant their choice of which parent to live with, unless that choice goes against the child’s best interests.

Regardless of the child’s decision, they will still need to visit with the non-custodial parent if physical custody is shared by both parents.

Can Primary Custody be Changed in Georgia?

Yes, after the court has given the child custody order, either parent can petition the court to change or modify it. The main grounds for child custody modification is a significant change in circumstances – maybe one parent is relocating outside the city, maybe there’s a major change in schedules, maybe the custodial parent has become unfit to raise the child.

The parent requesting custody modification must present evidence that such a substantial change warrants changing the court order. If the other parent disagrees, the judge will hear both sides and once again consider the many factors for ensuring the child’s best interests.

Contact a Georgia Child Custody Attorney

Seeking child custody can be complicated and challenging. As a loving parent, you want to make sure you can navigate the law and present an effective case to the court.

Get the legal support of Attorney Sharon Jackson, one of Gwinnett County’s most trusted Family Law attorneys. With over 20 years of experience, Ms. Jackson has helped numerous Georgian parents protect their parental rights while securing the most ideal arrangements for their children. Consult with Atty. Jackson about your child custody situation. Call (678) 909-4100 today.


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