Child Support, Visitation, and Custody

Question 1

What are the factors considered in awarding child support

Answer 1

The number of children

The children’s ages

Special needs of the children

Parents’ incomes (from any source)

Time spent with the child

This is a federally mandated child support scheme

Question 2

Relationship between visitation and child support:

Answer 2

Visitation is NOT dependent on the payment of child support.

Nonpayment may be used as a defense to a contempt action–unclean hands.

Question 3

When does the obligation for child support terminate?

Answer 3

• Upon the age of majority;
• the child’s death;
• the child’s marriage;
• the child’s emancipation

There is no support for college expenses

• the parties may contract otherwise
• a court may extend child support to age 20 IF still in high school

Question 4

When may a court modify child support?

Answer 4

Only upon a substantial change in the circumstances (e.g., need, ability to pay)

Question 5

Remedies for non-payment of spousal support and child support:

Answer 5

Spousal support:

• contempt
• judgment or levy–judgment creditor
• garnishment of wages
• attorney fees

Child support:

• contempt
• judgment or levy–judgment creditor
• garnishment of wages
• attorney fees
• automatic wage withholding
• interception of federal tax refund
• Child Support Recovery Act–collection services
• nonrenewal of professional licenses (except lawyers!)

Question 6

What are the kinds of child custody that the court must determine:

Answer 6

Legal custody:

• right to make major decisions affecting the child’s life

Physical custody:

• actual possession and control of the child

The court may award either joint or sole custody for both of these custody rights

Question 7

What governs the appropriate jurisdiction for child custody awards when multiple jurisdictions are involved?

Answer 7

This is governed by the Uniform Child Custody, Jurisdiction, and Enforcement Act (UCCJEA)

Question 8

Under the UCCJEA, when may Georgia make an initial award of custody?

Answer 8

If Georgia is the home state of the child, or was the child’s home state within six months of the proceedings and a parent is a current resident of Georgia

• home state: where the child has lived with a parent for six consecutive months

If there is no home state, when the child has significant connections with Georgia and there is substantial evidence of the child’s well-being in Georgia

If no state has significant connection, when other states have declined jurisdiction** because Georgia is the **more approrpiate forum (deferred jurisdiction)

If no other state exercises jurisdiction, then Georgia may take jurisdiction by default

Question 9

Under the UCCJEA, when may Georgia courts modify a Georgia decree?

Answer 9

Georgia will exercise continuing exclusive jurisdiction unless:

• no significant connection or substantial evidence in Georgia; OR
• no child or parent resides in Georgia

Question 10

Under the UCCJEA, when may Georgia courts modify another state’s decree?

Answer 10

• Georgia must assert jurisdiction under the factors in making an initial award of child custody; AND
• The other state court no longer has continuing, exclusive jurisdiction

Question 11

Under the UCCJEA, when must a Georgia court decline to exercise jurisdiction?

Answer 11

When a proper proceeding** was **pending elsewhere when the petition was filed in Georgia, unless the other court defers

When the petitioner has engaged in unjustifiable conduct, unless:

• all parties agree
• the other state court defers; OR
• by default

Question 12

Under the UCCJEA, how long does a temporary emergency jurisdiction order have effect?

Answer 12

Until a valid custody order is entered; OR

If no custody order is entered, it will become a final determination and Ga. will become the home state

If a valid custody order exists, then the Georgia court must specify the time limit for the emergency order

Question 13

What is the standard for awarding child custody?

Answer 13

Best interests of the child

Note: this standard applies for both Custody** and **Visitation

Question 14

Factors Considered for Best Interests of the Child:

Answer 14

The parents’ wishes or agreement

The wishes of the child

• 11-13 years old: court may consider
• 14 and older: court must consider, must still be in the best interests

The interaction and interrelationship of the child with parents, siblings, and others who affect the child’s best interest

• Georgia courts are inclined to keep siblings together

The child’s adjustment to home, school and community

The mental health and physical health of the individuals involved

Parental conduct and fitness

NOTE: This is a nonexhuastive list.

Question 15

What is the burden for nonparents to win custody?

Answer 15

They must show that the parent(s) is (are) unfit by clear and convincing evidence.

This implicates parents’ constitutional liberty interests.

Question 16

When may a court modify an award for custody?

Answer 16

When there has been a substantial and material change in the circumstances

Question 17

What are the visitation rights of a parent not awarded physical custody?

Answer 17

The other parent must be given reasonable visitation rights.

These visitation rights may be limited where the parent engages in conduct that might injure the child.

Question 18

What are the visitation rights of nonparents?

Answer 18

Grandparents** have **limited rights to seek visitation in context of divorce or custody proceedings

Court must find that awarding such rights are:

• in the best interests of the child; and
• there would be harm if visitation wre not granted

Factors:

• whether the grandparents provided financial support for at least a year
• pattern of visitation with the grandparents
• child resided with the grandparents for over six months
• anything else