TITLE 19 DOMESTIC RELATIONS

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

ARTICLE 1 GENERAL PROVISIONS

19-9-5. Custody agreements; ratification; supplementation.

In all proceedings under this article between parents, it shall be expressly permissible for the parents of a child to present to the judge an agreement respecting any and all issues concerning custody of the child. As used in this Code section, the term "custody" shall include, without limitation, joint custody as such term is defined in Code Section 19-9-6. As used in this Code section, the term "custody" shall not include payment of child support.
The judge shall ratify the agreement and make such agreement a part of the judge's final judgment in the proceedings unless the judge makes specific written factual findings as a part of the final judgment that under the circumstances of the parents and the child in such agreement that the agreement would not be in the best interests of the child. The judge shall not refuse to ratify such agreement and to make such agreement a part of the final judgment based solely upon the parents' choice to use joint custody as a part of such agreement.
In his or her judgment, the judge may supplement the agreement on issues not covered by such agreement.

(Code 1981, §19-9-5, enacted by Ga. L. 1986, p. 1585, § 1; Ga. L. 1992, p. 2135, § 1; Ga. L. 2007, p. 554, § 5/HB 369; Ga. L. 2008, p. 324, § 19/SB 455.)

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.

Law reviews.

- For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). 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 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 243 (1992).

JUDICIAL DECISIONS

Support award not precluded by joint custody award.

- Judgment awarding joint legal custody of a child does not preclude a monetary award of child support. Hunt v. Carter, 261 Ga. 259, 404 S.E.2d 121 (1991).

Consideration of postnuptial reconciliation agreement.

- As a trial court did not base the court's custody decision in the parties' divorce action solely on their postnuptial reconciliation agreement pursuant to O.C.G.A. § 19-9-5(b), but instead the court found that the custody arrangement encompassed within the agreement was in the children's best interests pursuant to the factors under O.C.G.A. § 19-9-3(a)(3)(A)-(Q), there was no abuse of discretion in the custody award. Spurlin v. Spurlin, 289 Ga. 818, 716 S.E.2d 209 (2011).

Authority to conduct best interests analysis.

- Trial court erroneously found that the court had no discretion to consider whether the parties' agreement, voluntarily terminating the father's parental rights under O.C.G.A. § 19-7-1 as part of the divorce settlement, was in the best interests of the child; the trial court, which had authority under O.C.G.A. § 19-9-5(b) to reject a custody agreement as being against the child's best interests and which had authority under O.C.G.A. § 15-11-94(a) to ascertain whether a voluntary termination was in the child's best interests, was to reject the agreement if it was not in the child's best interests. Taylor v. Taylor, 280 Ga. 88, 623 S.E.2d 477 (2005).

Agreed upon modification to custody and visitation erroneously omitted.

- Trial court erred in omitting the agreed upon modification to weekend custody and visitation in the court's final order. Williams v. Williams, 295 Ga. 113, 757 S.E.2d 859 (2014).

Cited in Gould v. Gould, 240 Ga. App. 481, 523 S.E.2d 106 (1999); Petry v. Romo, 249 Ga. App. 99, 547 S.E.2d 736 (2001); Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009).

RESEARCH REFERENCES

ALR.

- Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order and/or divorce judgment - general principles, jurisdictional issues, and general issues related to "best interests of child," 99 A.L.R.6th 203.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order and/or divorce judgment - conduct or condition of parents; evidentiary issues, 100 A.L.R.6th 1.

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