7 Reasons Why A Parent Can Lose Child Custody
This article addresses issues that constantly arise in child custody cases in Georgia. Under Georgia law, if a child is born out of wedlock, the mother automatically has sole legal and physical custody, unless the father "legitimates" the child in the Superior Court. However, whether the child is born out of wedlock or during marriage, the possibility looms that the mother (or custodial parent) could possibly lose primary physical custody to the non-custodial parent, and this article addresses some of the reasons why.
Recent reasons custody has been lost include:
(1) Adultery: Although more and more it appears that some judges are not as concerned with this issue, in a recent case in the Superior Court of Gwinnett County, a man represented himself in a contested divorce action in which the father was seeking custody of his three children. His wife was represented by an attorney. The father cried in court and told the female judge that he knew she (the judge) would rule against him because he was a man and because he did not have an attorney representing him. He alleged that his wife had an affair with her supervisor and was, in fact, pregnant by that same supervisor. The judge granted the father custody of the three minor children. The judge, further, denied any request by the wife for alimony or any other relief she had requested in her divorce action.
(2) Relocating the children: Questions often arise by the mother as to whether she can move out of state with the minor children. There is no law in Georgia which states the mother cannot move out of state. However, if there is a court order granting the father visitation, by voluntarily relocating the children out of state, the mother could be denying the father of his court ordered visitation. Such was the case in the Superior Court of DeKalb County. The mother voluntarily quit her job and relocated out of state. The judge was noticeably upset that she had violated the court order. Subsequently, physical custody was granted to the father.
(3) Domestic violence: When deciding issues of custody (and even visitation), the court considers "what is in the best interest of the minor child". If there is a history of domestic violence (especially in the presence of the child), the custodial parent stands the risk of losing custody. Such was the case recently where the mother re-married after the relationship with the biological father ended. There were several incidents of domestic violence between the mother and her new spouse. In an action to change custody, the court granted primary physical custody to the biological father
(4) Instability: In deciding what is in the best interest of the minor child, the court likes to see a stable home environment. If the custodial parent is constantly relocating, changing jobs, moving the child from one school to another, these acts of instability and questionable judgment are a concern for the court. In a recent case in the Superior Court of Fulton County, the court found that it was in the best interest of the minor child that custody be changed and granted to the child’s father.
(5) Inappropriate living arrangements: The living arrangements for the custodial parent is very important in the eyes of the court. The court found it troublesome recently when the mother testified that she was living in a two bedroom apartment with three adults and two children, while the biological father lived in a three bedroom home with one bedroom reserved for the minor child. Custody was awarded to the father.
(6) Criminal activity in the immediate environment: Elaborating on this issue is not necessary. If there is illegal drug activity, crime, shootings, etc., occurring in or around the residence where the custodial parent resides, there is a good chance that the non-custodial parent may prevail on a change of custody action.
(7) Incarceration or criminal charges: Clearly, if the custodial parent is incarcerated, whether waiting for trial or serving a sentence, the non-custodial parent stands a good chance of prevailing on a change of custody action, and this applies even where the non-custodial parent may be in the United States without lawful authority. When it comes to domestic issues involving minor children, the courts are not concerned about the immigration status of either party. What is in the best interest of the minor child is the controlling issue. Recently, the mother (custodial parent), a United States citizen, was incarcerated on a drug offense. The child was residing with his maternal grandparents. The grandparents attempted to control whether the father could visit with his son. Upon hearing the case, the biological father was awarded custody of the minor child, even though the biological parents were never married, and even though he (the father) was subject to possible deportation.
Certainly this article does not address every conceivable reason why a custodial parent (typically the mother) could lose custody of the minor children; however, it sheds some light on issues to consider where a minor child is involved. For further questions or to schedule a consultation, feel free to contact my office at (404) 551-2428. Anthony Overton Van Johnson.