O.C.G.A.
O.C.G.A.

O.C.G.A. § 19-9-5 (2019)

Custody agreements; ratification; supplementation

✓ O.C.G.A. (archive.org 2024 item): print volumes of 2004-2024, per-volume vintage; older volumes partly replaced by 2019 Release 73 text; no 2025 or 2026 Acts
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) 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

Annotations

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.

Notes of Decisions
Cited in 16 cases, 1991–2020 · leading case: Williams v. Williams, 757 S.E.2d 859 (Ga. 2014).
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Williams v. Williams, 757 S.E.2d 859 (Ga. 2014). · cites it 4× “6 Under the circumstances, the order's provision as to the [Sunday to Monday] visitation schedule, to the extent that it reflected that [Husband’s visitation would end on Sunday night], was not a valid exercise of the trial court's discretion but a mistake in reflecting a matter…”
Spurlin v. Spurlin, 716 S.E.2d 209 (Ga. 2011). · cites it 10× “After a bench trial, the trial court entered a final divorce decree, wherein it ratified the postnuptial agreement pursuant to OCGA § 19-9-5 (b), finding that joint legal custody and primary physical custody in Husband was in the best interests of the children at the time the…”
Moore v. Moore-McKinney, 678 S.E.2d 152 (Ga. Ct. App. 2009). · cites it 2× “See generally OCGA § 19-9-5 (a) (parents may present an agreement “respecting any and all issues concerning custody of the child”).”
Taylor v. Taylor, 623 S.E.2d 477 (Ga. 2005). · cites it 4× “545, 549 ( 100 SE2d 289 ) (1957) (parents’ custody agreement subrogated to the paramount issue of the best interest of the child); OCGA § 19-9-5 (b) (court has discretion to ratify or reject parties’ custody agreement according to its determination regarding the best interest of…”
Daniel v. Daniel, 552 S.E.2d 479 (Ga. Ct. App. 2001). · cites it 2× “OCGA § 19-9-5. Such agreements, which reflect both the negotiation of the parties and the approval of the trial court, should not be set aside lightly.”
Ansell v. Ansell, 759 S.E.2d 916 (Ga. Ct. App. 2014). · cites it 2× “See OCGA § 19-9-5 (c) (“In his or her judgment, the judge may supplement the [custody] agreement on issues not covered by such agreement.”
Carr v. Carr, 429 S.E.2d 95 (Ga. Ct. App. 1993). · cites it 2× “OCGA § 19-9-5 (b).” The court then determined that the subject provision of the decree constituted an impermissible attempt to retain permanent jurisdiction of custody issues in the trial court.”
Templeman v. Earnest, 434 S.E.2d 106 (Ga. Ct. App. 1993). · cites it 2× “See OCGA § 19-9-5; Mock v. Mock, 258 Ga. 407 ( 369 SE2d 255 ).”
Robinson v. Robinson, 404 S.E.2d 435 (Ga. 1991). · cites it 2× “…court makes specific factual findings that the agreement would not be in the best interest of the child or children.” OCGA § 19-9-5 (b).”
Gould v. Gould, 523 S.E.2d 106 (Ga. Ct. App. 1999). · cites it 4× “” OCGA § 19-9-5. Merely requiring *484 parents to attempt resolution of a custody dispute before litigating does not equate to the court abandoning its obligations to the children.”
Hunt v. Carter, 404 S.E.2d 121 (Ga. 1991). · cites it 2× “OCGA § 19-9-5 provides expressly that “the term ‘custody’ shall not include payment of child support.”
Duncan v. Mughelli, 751 S.E.2d 127 (Ga. Ct. App. 2013). · cites it 2× “, OCGA § 19-9-5 (b) (court shall ratify custody agreement and make part of its final judgment unless such agreement would not be in best interest of the child) with OCGA § 19-9-1.”
Show all 16 citing cases →
19-9-5(b): 1 case
Taylor v. Taylor, 623 S.E.2d 477 (Ga. 2005). “545, 549 ( 100 SE2d 289 ) (1957) (parents’ custody agreement subrogated to the paramount issue of the best interest of the child); OCGA § 19-9-5 (b) (court has discretion to ratify or reject parties’ custody agreement according to its determination regarding the best interest of…”
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