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The Georgia Code on “Best Interests of a Child”

by merlin on December 23rd, 2014
  • Sumo

Though it is a duplicative list, the Georgia Code actually provides two sections that each list the objective factors that go into the prevailing consideration for a judge in a child custody determination.  The primary section that governs is Section 19-9-3(4), which lays out a list of specific issues the judge (and the Guardian Ad Litem, if one is selected by the judge) is to consider in making their decision:

(3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent’s knowledge and familiarity of the child and the child’s needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

(G) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;

(I) The mental and physical health of each parent;

(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;

(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.

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I have emphasized the word “and” in the subsection above to make it clear that this is an INCLUSIVE list, and no one factor dominates.  Additionally, the factors that the judge can/should use in considering what constitutes the “best interests of the child” can be found in the sections of the Uniform Code of Georgia dealing with Juvenile Court, Section 15-11-26 sets these out, and they are a good way to consider the above specific items:

“Whenever a best interests determination is required, the court shall consider and evaluate all of the factors affecting the best interests of the child in the context of such child’s age and developmental needs. Such factors shall include:

(1) The physical safety and welfare of such child, including food, shelter, health, and clothing;

(2) The love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child;

(3) The love, affection, bonding, and emotional ties existing between such child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(4) Such child’s need for permanence, including such child’s need for stability and continuity of relationships with his or her parent, siblings, other relatives, and any other person who has provided significant care to such child;

(5) Such child’s sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child;

(6) The capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child;

(7) The home environment of each parent or person available to care for such child considering the promotion of such child’s nurturance and safety rather than superficial or material factors;

(8) The stability of the family unit and the presence or absence of support systems within the community to benefit such child;

(9) The mental and physical health of all individuals involved;

(10) The home, school, and community record and history of such child, as well as any health or educational special needs of such child;

(11) Such child’s community ties, including church, school, and friends;

(12) Such child’s background and ties, including familial, cultural, and religious;

(13) The least disruptive placement alternative for such child;

(14) The uniqueness of every family and child;

(15) The risks attendant to entering and being in substitute care;

(16) Such child’s wishes and long-term goals;

(17) The preferences of the persons available to care for such child;

(18) Any evidence of family violence, substance abuse, criminal history, or sexual, mental, or physical child abuse in any current, past, or considered home for such child;

(19) Any recommendation by a court appointed custody evaluator or guardian ad litem; and

(20) Any other factors considered by the court to be relevant and proper to its determination.”

As noted, these factors overlap, but they provide different ways of looking at the standard.  Of course, the overarching point of these is to consider that it isn’t just “material” issues alone, and it isn’t just emotional considerations, either, since there needs to be a balance between these two things.  As long as the balance provides for both the basic material, educational, and emotional needs of the child, it is appropriate.  However, these factors must be evaluated to determine the actual balance of the placement of the child!

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