2022 Georgia Code
Title 19 - Domestic Relations
Chapter 9 - Child Custody Proceedings
Article 1 - General Provisions
§ 19-9-3. Establishment and Review of Child Custody and Visitation

Learn more This media-neutral citation is based on the American Association of Law Libraries Universal Citation Guide and is not necessarily the official citation.

1. 1. In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.
   2. The judge hearing the issue of custody shall make a determination of custody of a child and such matter shall not be decided by a jury. The judge may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child should be awarded. The duty of the judge in all such cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.
   3. In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
      1. The love, affection, bonding, and emotional ties existing between each parent and the child;
      2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
      3. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
      4. Each parent’s knowledge and familiarity of the child and the child’s needs;
      5. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
      6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
      7. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
      8. The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
      9. The mental and physical health of each parent, except to the extent as provided in Code Section 30-4-5 and this paragraph and such factors as provided in Code Section 15-11-26;
      10. Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
      11. Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
      12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
      13. Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
      14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
      15. Any recommendation by a court appointed custody evaluator or guardian ad litem;
      16. Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
      17. Any evidence of substance abuse by either parent.
      1. The judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
      2. The judge shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
      3. If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of custody determination; and
      4. The judge shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.
      1. In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.
      2. In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent’s visitation rights or parenting time.
      3. Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.
      1. A court shall not enter a final order modifying parental rights and responsibilities under an existing parenting plan earlier than 90 days after the deployment ends, unless such modification is agreed to by the deployed parent;
      2. Upon a petition to establish or modify an existing parenting plan being filed by a deploying parent or nondeploying parent, the court shall enter a temporary modification order for the parenting plan to ensure contact with the child during the period of deployment when:
         1. A military parent receives formal notice from military leadership that he or she will deploy in the near future, and such parent has primary physical custody, joint physical custody, or sole physical custody of a child, or otherwise has parenting time with a child under an existing parenting plan; and
         2. The deployment will have a material effect upon a deploying parent’s ability to exercise parental rights and responsibilities toward his or her child either in the existing relationship with the other parent or under an existing parenting plan;
         1. All temporary modification orders for parenting plans shall include a reasonable and specific transition schedule to facilitate a return to the predeployment parenting plan over the shortest reasonable time period after the deployment ends, based upon the child’s best interest.
         2. Unless the court determines that it would not be in the child’s best interest, a temporary modification order for a parenting plan shall set a date certain for the anticipated end of the deployment and the start of the transition period back to the predeployment parenting plan. If a deployment is extended, the temporary modification order for a parenting plan shall remain in effect, and the transition schedule shall take effect at the end of the extension of the deployment. Failure of the nondeploying parent to notify the court in accordance with this paragraph shall not prejudice the deploying parent’s right to return to the predeployment parenting plan once the temporary modification order for a parenting plan expires as provided in subparagraph (C) of this paragraph.
         3. A temporary modification order for a parenting plan shall expire upon the completion of the transition period and the predeployment parenting plan shall establish the rights and responsibilities between parents for the child;
         1. The nondeploying parent make the child reasonably available to the deploying parent to exercise his or her parenting time immediately before and after the deploying parent departs for deployment and whenever the deploying parent returns to or from leave or furlough from his or her deployment;
         2. The nondeploying parent facilitate opportunities for the deployed parent to have regular and continuing contact with his or her child by telephone, email exchanges, virtual video parenting time through the internet, or any other similar means;
         3. The nondeploying parent not interfere with the delivery of correspondence or packages between the deployed parent and child of such parent; and
         4. The deploying parent provide timely information regarding his or her leave and departure schedule to the nondeploying parent;
         1. When deployment of a military parent appears imminent and there is no existing parenting plan or other order setting forth the parent’s rights and responsibilities, then upon a petition filed by either parent the court shall:
            1. Expedite a hearing to establish a temporary parenting plan;
            2. Require that the deploying parent shall have continued access to the child, provided that such contact is in the child’s best interest;
            3. Ensure the disclosure of financial information pertaining to both parties;
            4. Determine the child support responsibilities under Code Section 19-6-15 of both parents during the deployment; and
            5. Determine the child’s best interest and consider delegating to any third parties with close contacts to the child any reasonable parenting time during the deployment. In deciding such request the court shall consider the reasonable requests of the deployed parent.

            History. Ga. L. 1913, p. 110, § 1; Code 1933, § 74-107; Ga. L. 1957, p. 412, § 2; Ga. L. 1962, p. 713, § 2; Ga. L. 1976, p. 1050, § 3; Ga. L. 1978, p. 258, § 3; Ga. L. 1982, p. 3, § 19; Ga. L. 1984, p. 22, § 19; Ga. L. 1986, p. 1000, § 2; Ga. L. 1990, p. 1423, § 1; Ga. L. 1991, p. 1389, § 1; Ga. L. 1993, p. 1983, § 1; Ga. L. 1995, p. 863, § 6; Ga. L. 1999, p. 329, § 4; Ga. L. 2000, p. 1292, § 2; Ga. L. 2004, p. 780, § 3; Ga. L. 2007, p. 554, § 5/HB 369; Ga. L. 2011, p. 274, § 3/SB 112; Ga. L. 2017, p. 632, § 2-10/SB 132; Ga. L. 2019, p. 459, § 3/HB 79; Ga. L. 2021, p. 922, § 19/HB 497; Ga. L. 2022, p. 352, § 19/HB 1428.

            The 2017 amendment, effective January 1, 2018, substituted “prescribed by the Judicial Council of Georgia” for “set forth in Code Section 9-11-133” near the end of subsection (h).

            The 2019 amendment, effective May 2, 2019, added the exception in subparagraph (a)(3)(I).

            The 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted “email” for “e-mail” in subparagraph (i)(6)(B) and paragraph (i)(10); and substituted “internet” for “Internet” in subparagraph (i)(6)(B) and in the second sentence of paragraph (i)(13).

            The 2022 amendment, effective May 2, 2022, part of an Act to revise, modernize, and correct the Code, substituted “this paragraph” for “paragraph (3) of subsection (a) of Code Section 19-9-3” in subparagraph (a)(3)(I).

            Code Commission notes.

            Pursuant to Code Section 28-9-5, in 1991, subsection (c), which was added by Ga. L. 1991, p. 1389, was redesignated as subsection (d).

            Pursuant to Code Section 28-9-5, in 2007, “its” was deleted preceding “discretion” in the last sentence of paragraph (a)(2), and “educational” was substituted for “education” in subparagraph (a)(3)(J).

            Editor’s notes.

            Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides: “The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship.”

            Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

            Ga. L. 2011, p. 274, § 1/SB 112, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Military Parents Rights Act.’”

            Ga. L. 2019, p. 459, § 1/HB 79, not codified by the General Assembly, provides: “(a) The Georgia General Assembly finds that:

            “(1) Blind individuals continue to face unfair societal biases regarding their ability to successfully provide parental care;

            “(2) Blind individuals face unfair societal biases in family and dependency law proceedings, public and private adoption, guardianship, and foster care proceedings;

            “(3) Children of blind individuals are being unnecessarily removed or restricted from parental care; and

            “(4) Children are being denied the opportunity to enjoy loving homes with blind parents or other blind caretakers.

            “(b) The purpose of this Act is to protect the best interests of children parented by blind individuals or children who could be parented by blind individuals through the establishment of procedural safeguards that require adherence to due process and equal protection rights of blind parents in the context of child welfare, foster care, adoption, and family law.”

            Law reviews.

            For comment on Stanton v. Stanton, 213 Ga. 545 , 100 S.E.2d 289 (1957), holding that parents cannot by contract restrict the discretion of the court in awarding custody and provision regulating the religious upbringing of the child may be entirely disregarded by the court, see 20 Ga. B.J. 546 (1958).

            For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

            For comment on Bodrey v. Cape, 120 Ga. App. 859 , 172 S.E.2d 643 (1969), see 7 Ga. St. B.J. 256 (1970).

            For article, “The Child as a Party in Interest in Custody Proceedings,” see 10 Ga. St. B.J. 577 (1974).

            For comment on “Grandparents’ Visitation Rights in Georgia,” see 29 Emory L.J. 1083 (1980).

            For note, “Surrogate Mother Agreements in Georgia: Conflict and Accord with Statutory and Case Law,” see 4 Ga. St. U.L. Rev. 153 (1988).

            For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 122 (1993).

            For comment on In re A.R.B., 209 Ga. App. 324 , 433 S.E.2d 411 (1993), regarding redefinition of the best interests standard, see 11 Ga. St. U.L. Rev. 711 (1995).

            For article, “Domestic Relations Law,” see 53 Mercer L. Rev. 265 (2001).

            For survey article on domestic relations cases for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 223 (2003).

            For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004).

            For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006).

            For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007).

            For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008).

            For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010).

            For annual survey on domestic relations law, see 68 Mercer L. Rev. 107 (2016).

            For article, “Criminal Law as Family Law,” see 33 Ga. St. U.L. Rev. 285 (2017).

            For article with annual survey on domestic relations, see 73 Mercer L. Rev. 89 (2021).

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