TITLE 19 DOMESTIC RELATIONS

Section 9. Child Custody Proceedings, 19-9-1 through 19-9-134.

ARTICLE 1 GENERAL PROVISIONS

19-9-4. Investigation of abuse, neglect, or other acts which adversely affect health of child in custody disputes; cost.

On motion of either party in any action or proceeding involving determination of the award of child custody between parents of the child, when such motion contains a specific recitation of actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child, the judge may direct the appropriate family and children services agency or any other appropriate entity to investigate the home life and home environment of each of the parents. In any action or proceeding involving determination of the award of child custody between parents of the child when during such proceedings a specific recitation of actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child has been made the judge shall also have authority on his or her own motion to order such an investigation if in the judge's opinion the investigation would be useful in determining placement or custody of the child. The judge may also direct either party to pay to the agency the reasonable cost, or any portion thereof, of the investigation. The report of the investigation will be made to the judge directing the investigation. Any report made at the direction of the judge shall be made available to either or both parties for a reasonable period of time prior to the proceedings at which any temporary or permanent custody is to be determined. Both parties shall have the right to confront and cross-examine the person or persons who conducted the investigation or compiled the report if adequate and legal notice is given.
This Code section shall apply only with respect to actions or proceedings in which the issue of child custody is contested; and this Code section is not intended to alter or repeal Code Sections 49-5-40 through 49-5-44.

(Ga. L. 1980, p. 1149, §§ 1, 2; Ga. L. 1982, p. 3, § 19; Ga. L. 1982, p. 1189, §§ 1, 2; Ga. L. 2007, p. 554, § 5/HB 369.)

Editor's notes.

- Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides that: "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.

JUDICIAL DECISIONS

Report from county department of family and children services.

- It is error for trial court to consider report from county Department of Family and Children Services to decide child custody, in absence of stipulation by both parties that court may do so, unless provisions of O.C.G.A. § 19-9-4 apply. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).

Making report available to parties is mandatory.

- Provision in subsection (a) of O.C.G.A. § 19-9-4 for making report available to parties is mandatory. Davis v. Davis, 253 Ga. 73, 316 S.E.2d 455 (1984).

Failure to make report available requires reversal.

- Trial court's failure to comply with mother's request to examine Department of Family and Children Services' report, prepared at the court's direction pursuant to subsection (a) of O.C.G.A. § 19-9-4, required reversal of the court's custody decree. Davis v. Davis, 253 Ga. 73, 316 S.E.2d 455 (1984).

Court's refusal to order a second investigation of allegations of child abuse on the part of the father was not an abuse of discretion, after a prior investigation, which had been conducted at the request of the father, had failed to uncover evidence of any sexual misconduct toward the child and the mother made no effort to obtain a second investigation after the father had agreed to share the costs of the investigation. Evans v. Stowe, 181 Ga. App. 489, 352 S.E.2d 811 (1987).

Psychiatric examination.

- In attempting to reach a determination regarding the best interest of the child, the superior court has the power, when the issue of child custody is contested, to compel either or both parents to submit to examination and evaluation by a court-appointed clinical psychologist or psychiatrist. The mental health of the parents is an inherent and vital part of their overall "state of health," within the meaning of O.C.G.A. § 19-9-4(a), and can be a critical factor in determining the best interest of the child. Rowe v. Rowe, 195 Ga. App. 493, 393 S.E.2d 750 (1990).

Cited in Howard v. Fincher, 161 Ga. App. 411, 288 S.E.2d 338 (1982).

RESEARCH REFERENCES

ALR.

- Consideration of investigation by welfare agency or the like in making or modifying award as between parents of custody of children, 35 A.L.R.2d 629.

Custodial parent's sexual relations with third person as justifying modification of child custody order, 100 A.L.R.3d 625.

Admissibility of social worker's expert testimony on child custody issues, 1 A.L.R.4th 837.

Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.

Tort liability of public authority for failure to remove parentally abused or neglected children from parents' custody, 60 A.L.R.4th 942.

Availability and use of electronic communication in child custody and visitation determinations, 96 A.L.R.6th 103.

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