An introduction to change of custody
In Georgia, families may find themselves in need of a change of custody for any number of reasons. For instance, one parent may decide that it is in the best interest of the child to live with the other. Alternatively, changes in a child’s circumstances may warrant a switch in custody. In other instances, a court may have decided that a change is necessary and appointed a recipient parent. No matter the reason for the switch , changes of custody should always be approached carefully and with plenty of legal foresight. Changes of custody require more than just an agreement among parents. An order is needed before a child can be moved from his or her home to the new custodian’s. Furthermore, if the parties are unable to agree on the switch, a trial may be required to determine how the custody arrangement should be handled. Preparing for this trial often requires an extensive amount of work and preparation to define a legal reason for the change. Below, we discuss a few of the most common reasons for a change of custody and how the process works in the State of Georgia.
An overview of Georgia’s change of custody laws
When a parent wishes to modify a custody arrangement in Georgia, the legal landscape can be complex and strict. Georgia has a number of statutes and case law that guide the modification of custody. The modification of custody is governed by O.C.G.A. § 19-9-3, as well as cases interpreting that statute. Under Georgia law, a parent seeking to change a custody order must show that there has been a material change in circumstances since the original custody order was entered. Even if the parent meets that burden, the trial court then decides whether it is in the child’s best interest to modify the custody order.
In a child custody modification case, the burden is on the moving party to show a change of circumstances and that the requested change is in the best interest of the minor child. Looney v. Farr, 303 Ga. App. 397 (2010). In child custody cases, matters tried before a judge alone are reviewed on appeal under the "any evidence" standard, which is a lower burden of proof than the "preponderance of the evidence" standard applicable to jury trials. Under this low standard of review, an appellate court will not disturb the trial court’s order unless there is no evidence in the record to support the trial court’s order.
Georgia law further outlines specific grounds that the court may consider in deciding whether to modify custody. If one of the parents has committed an unlawful act against the child or had a conviction for an unlawful act carried out in the presence of the child, that is a factor the court may consider in modifying custody. The court may also consider other considerations that are in the best interest of the child.
The statute specifically provides: Other than the factors listed in the statute, the Georgia Child Custody Statute does not give judges any specific guidelines on what to look at, or what factors weigh for or against a modification of a parenting plan/partition of the year.
While the statute itself does not address relocation issues, the Georgia Appellate Courts have held that it applies to relocation cases as well. Courts will always look to determine whether relocation is a material change of circumstance so that the statute is satisfied, and then whether it is in the best interest of the child to grant or deny the request to relocate.
Obtaining a change of custody form
To obtain a change of custody form in Georgia, there are several steps you can follow. The first step is to identify the specific type of change of custody form relevant to your situation. There are different types of forms for various scenarios, such as a change of custody for medical or educational purposes, temporary change of custody due to travel, or a permanent change of custody due to a modification of the current custody agreement.
Once you’ve determined the appropriate form, the next step is to locate the form. Many of these forms can be found online through the official website of the Georgia Department of Human Services – Division of Child Support Services (DFACS). The website offers a variety of forms, including the "Request for Change of Custody" form. You can also check with your local DFACS office or the juvenile court in your county, as these offices typically have the necessary change of custody forms available.
In some cases, you may need to consult with an attorney to obtain a form or ensure that you are using the correct form. This is especially important if you are seeking a legal modification of a custody order or if there are complex circumstances involved in the change of custody. It’s always best to have an accurate and legally sound form to avoid any issues or delays in the change of custody process.
Once you have the correct form, you will need to fill it out completely and accurately. Be sure to provide all of the information requested and sign the form where indicated. Depending on the reason for the request, you may also need to provide supporting documentation, such as medical records, school records, or proof of financial stability.
After completing the form, you will need to file it with the appropriate agency or court. If you are requesting a change of custody through DFACS, they will send the form to the other parent. If you are requesting a temporary change of custody, you may need to file a motion with the juvenile court or other appropriate court in your jurisdiction. It’s important to review the filing requirements for your specific county, as the process and fees may vary.
Understanding change of custody forms in Georgia and how to request a change of custody can help ensure that you are taking the right steps in obtaining custody of a child.
Completing the change of custody form
Filling out the Georgia Change of Custody Form
- Caption: The first thing to pay attention to is that both parties should sign the form in front of a notary. This means that the caption should list both parties, as if they were changing the terms of a contract.
- Paragraph A: This is the paragraph where most people get tripped up. They neglect to put in something in opposition to the previous final order. Since there can only be one final order in a custody case, you must indicate that there was previous order, that it is being vacated, and that the new Order will replace it.
- Paragraph B: This paragraph gives the full name and age of the minor children. This should be a list of all the children from this one relationship. In other words, if you are having one child by surrogate, one child by adoption, AND one child the old fashioned way, you should create two change of custody forms, each after each child’s name.
- Paragraph C: This paragraph sets out when the parties became divorced. Make sure to do your research to ensure that you have the correct date (i.e. some judges list the date of final judgment, others the date of final appeal).
- Paragraph D: This paragraph says that the party whom is receiving sole physical custody is the only primary custodial parent of the children. It also does not allow for any visitation be retained by the other parent, which is why it is important to have an attorney skilled at drafting these forms to make sure that the party whom is giving up custody is not signing away their visitation rights forever.
- Paragraph E: This paragraph sets out the visitation for the Non-Custodial Parent. While this gives a good framework as to the amount of visitation, make sure to take note of everything in this paragraph. For example, it states that the NC Parent has the right to visit the children on Thanksgiving every odd year. This provision is open for interpretation. Did the Judge mean to say that the NC Parent gets this time "specifically" and may not have time on the other holidays? Or was the Judge being very specific, and the NC Parent must now go to court every single odd year to get the same amount of visitation on Thanksgiving?
Filing the change of custody
After you have completed the Georgia Rule 31 and 32 change of custody form, you and the new custodian should personally file the completed forms by deliver same to the local Department of Family and Children Services office for your county or area. In some smaller counties, the completed forms may be filed with your local Clerk of Court. Many local Department of Family and Children Services offices will also permit you to securely fax the change of custody forms in addition to filing them in person with your local office. The form must be submitted with a $50.00 payment (in some counties , the fee is $25.00). A copy of your changed child custody agreement (if available) and proof of residency/income (e.g., a recent paycheck stub) are sometimes required as well. If you have secured private, physical custody of your child under this new child custody agreement, you will need to file the child custody order where the child comes to live at. Rules for private services vary by county, so you should be sure to visit the rules or local branch office for your county in advance. Some private services charge a higher fee than standard child support fees for these services (and may not accept debit payments or cash).
Typical problems and solutions
Parents are often presented with the challenge of completing a Change of Custody Form in Georgia when they have agreed to modify their child’s custodial arrangement. This can present difficulties in the absence of a standard form. Without a generic form, parents must create their own, which can be cumbersome and increase the risk of important nuances being ignored. One common situation that can create a problem involves guidance. Some parents may assume that they are not required to seek guidance, because they do not anticipate problems, given that they have the consent of both parties. Alternatively, the parties may not know how to go about preparing the "proposed" stand-alone form, with the necessary provisions. Without some direction, it is difficult to create a valid, comprehensive document that adequately protects the parties’ rights and interests. Proposed solutions to this problem include using a Child Support Guidelines Worksheet and other prior Order(s) as a guide. In addition, a few online resources are available, including an example of a non-dissolution custody modification, which outlines important modifications that are often included in a proposed change in custody. As with a divorce or dissolution agreement, a Comprehensive Treatment Order is another option that is readily available. This type of document can be used to provide clear guidance about issues related to visitation, parenting time, education, and much more. Social service agencies and Georgia online resources can also provide useful examples and guidance for Modification Orders.
Legal help and resources
Seeking the assistance of an attorney is always a good idea when changing custody arrangements. An experienced attorney can help you understand your legal rights and responsibilities when dealing with change of custody forms in Georgia. To find an attorney in your area, you can contact the state bar association to see a member listing or meet individually with an attorney to have the attorney assess your situation as a whole. The state bar association may charge a nominal fee for this service , but most attorneys will meet with you at no charge the first time. A good resource to utilize to try to obtain an attorney at low cost is a local women’s domestic violence shelter. These organizations are usually very familiar with divorce and child related issues and can point you in the right direction to receive some assistance. When a parent is in a bind and has a problem, they can also contact the Georgia Attorney General’s office for help with any issue involving their child. The Attorney General’s office deals with child support related issues and can help guide you. The Georgia Department of Family and Children Services may also be able to help when a child is involved.