O.C.G.A. § 19-9-6 (2019)
Definitions
As used in this article, the term: (1) “Armed forces” means the national guard and the reserve components of the armed forces, the United States army, navy, marine corps, coast guard, and air force. (2) “Deploy” or “deployment” means military service in compliance with the military orders received by a member of the armed forces to report for combat operations, contingency operations, peacekeeping operations, a remote tour of duty, temporary duty, or other such military service for which a parent is required to report unaccompanied by family members. Deployment shall include the period during which a military parent remains subject to deployment orders and remains deployed on account of sickness, wounds, leave, or other lawful cause. Such term shall include mobilization. (3) “Deploying parent” or “deployed parent” means a military parent who has been formally notified by military leadership that he or she will deploy or mobilize or who is currently deployed or mobilized. (4) “Joint custody” means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody. (5) “Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions. (6) “Joint physical custody” means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents. (7) “Military family care plan” means a plan that is periodically reviewed by a military parent’s commander that provides for care of
a military parent’s child whenever his or her military duties prevent such parent from providing care to his or her child and ensures that a military parent has made adequate and reasonable arrangements to provide for the needs and supervision of his or her child whenever a nondeploying parent is unable or unavailable to provide care in the military parent’s absence. (8) “Military parent” means a member of the armed forces who is a legal parent, adoptive parent, or guardian of a child under the age of 18, whose parental rights are established either by operation of law or the process of legitimation, and who has not had his or her parental rights terminated by a court of competent jurisdiction. (9) “Mobilization” or “mobilize” means the call-up of the national guard and the reserve components of the armed forces to extended active duty service. Such term shall not include National Guard or Reserves component annual training, inactive duty days, drill weekends, or state active duty performed within the boundaries of this state. (10) “Nondeploying parent” means: (A) A parent who is not a member of the armed forces; or (B) A military parent who is currently not also a deploying parent. (11) “Sole custody” means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training, and the noncustodial parent shall have the right to visitation or parenting time. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights or parenting time. (12) “State active duty” means the call-up by a governor for the performance of any military duty while serving within the boundaries of that state. (13) “Temporary duty” means the assignment of a military parent to a geographic location outside of this state for a limited period of time to accomplish training or to assist in the performance of a military mission.
History
Code 1981, § 19-9-6, enacted by Ga. L. 1990, p. 1423, § 2; Ga. L. 2007, p. 554, § 5/HB 369; Ga. L. 2011, p. 274, § 4/SB 112; Ga. L. 2016, p. 864, § 19/HB 737.
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. Ga. L. 2011, p. 274, § 1/SB 112, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Military Parents Rights Act.’” Law reviews. For comment on In re A.R.B., 209 Ga. App. 324, 433 S.E.2d 411 (1993), regarding redefinition of the best interests standard, see 11 Ga. St. U.L. Rev. 711 (1995).
JUDICIAL DECISIONS Authority to modify custody not given. - O.C.G.A. § 19-9-6(2) does not grant a trial court the authority to modify child custody. Daniel v. Daniel, 250 Ga. App. 482, 552 S.E.2d 479, 2001 Ga. App. LEXIS 794 (2001). Joint legal custody. - When the court awarded physical custody to the father in the court’s modification order and the father did not contest the award of joint legal custody, the trial court properly exercised the court’s authority in consideration of the best interests of the children to award joint legal custody to both parents. Walker v. Walker, 248 Ga. App. 177, 546 S.E.2d 315, 2001 Ga. App. LEXIS 207 (2001), cert. denied, No. S01C0956, 2001 Ga. LEXIS 686 (Ga. Sept. 10, 2001). Joint custody must be considered if both parents are fit. - If the trial court determines that both parents are fit and equally capable of caring for the child, the court must consider joint custody but is not required to enter such an order unless the court specifically finds that to do so would be in the best interest of the child. Baldwin v. Baldwin, 265 Ga. 465, 458 S.E.2d 126, 1995 Ga. LEXIS 374 (1995). Joint custody options not properly considered. - Trial court failed to give proper consideration to the joint custody options available under O.C.G.A. § 19-9-6 after both parents demonstrated equal ability to effectively care for and nurture
the child. In re A.R.B., 209 Ga. App. 324, 433 S.E.2d 411, 1993 Ga. App. LEXIS 869 (1993). 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 Ga. LEXIS 231 (1991). Joint custody with decision- making authority split. - Award of joint legal custody designating the mother as the primary physical custodian with the sole power to make decisions concerning the children’s education, health, and religious training, and giving the father equal decision-making responsibility in other areas did not contravene O.C.G.A. § 199-6 or public policy. Scott v. Scott, 227 Ga. App. 346, 489 S.E.2d 117, 1997 Ga. App. LEXIS 918 (1997). Because the language of the statute clearly vested in the trial court the discretion to decide which parent should be empowered to make final decisions when the parents were unable to agree, and the evidence showed on-going disagreements between the parents on the issues of education and extra-curricular activities, making it unlikely for the parties to come to agreement on those issues, and also showed that the husband played a greater role than the wife in decision-making re-
garding the children’s education and extra-curricular activities prior to the parties’ separation, the trial court’s designation of decision-making authority to the wife with regards to religion and health and to the husband with regard to education and extra-curricular activities was not an abuse of that discretion. Frazier v. Frazier, 280 Ga. 687, 631 S.E.2d 666, 2006 Ga. LEXIS 456 (2006). Joint physical custody proper. - Trial court did not abuse the court’s discretion in awarding joint physical custody of a child because the trial court’s order found both the husband and the wife to be fit and proper, acknowledging that each parent had strengths and weaknesses; the trial court heard testimony concerning the husband’s relationship with his child, the financial payments he made while the child and the wife were living with the wife’s parents in another state, and the difficulty of visiting the infant when the child and the wife were living with the wife’s parents. Furthermore, the order was made with the best interests of the child in mind because there was evidence that the child had a good relationship with each parent and that each parent had adequate housing for the child and could provide what the child needed; the trial court expressly found it was in the child’s best interests that the husband and wife share joint physical custody on alternating weeks, and the Social Service Coordinator assigned to the case recommended
to the trial court that the husband and wife share evenly-divided joint physical custody of the child. Willis v. Willis, 288 Ga. 577, 707 S.E.2d 344, 2010 Ga. LEXIS 941 (2010). Modification of joint custody agreement. - In granting the mother’s petition to change custody, the record contained ample evidence from which the trial court could determine that the father could not provide a stable home because he took the child from Georgia to Maryland in violation of the joint custody agreement without telling the mother, he suffered from bipolar personality disorder, and was hospitalized for suicidal ideation. The trial court made the court’s custody determination based upon the best interest of the child. Roberts v. Kinsey, 308 Ga. App. 675, 708 S.E.2d 600, 2011 Ga. App. LEXIS 267 (2011). Final decision making authority to one parent. - In a divorce action in which joint legal custody of the parties’ two children was awarded, it was appropriate to grant final decision making authority to a former husband under O.C.G.A. § 19-9-6(2) as the primary physical custodian as there were issues on which both parents did not agree, such as where the children would attend school; however, the husband was required to take the former wife’s views into consideration. Rembert v. Rembert, 285 Ga. 260, 674 S.E.2d 892, 2009 Ga. LEXIS 90 (2009).