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When a couple with children separates in Douglasville, one parent will usually be granted primary physical custody, and the other parent is entitled to visitation rights. It is generally considered in the child’s best interests for parents to share legal custody. This means that each parent has equal rights in making decisions about key aspects of the child’s life, such as education, healthcare, religion, moral upbringing, and so on.
However, in some custody disputes, a judge may feel that it is in the best interests of the child to grant sole custody to one parent. Finding that one parent is “unfit” is one (but not the only) instance where sole custody may be awarded to one parent. Sole legal custody is quite rare in Georgia – and is generally reserved for extreme cases of neglect or abuse. A high value is placed on parental rights, and these are only terminated if deemed absolutely necessary, such as in the case of an unfit parent.
The legislation in Georgia concerning “unfit” parents is outlined in Ga. Code § 19-7-4 (2020).
Parents are held to high standards and are expected to meet certain minimum guidelines in Georgia.
An “unfit” parent is deemed incapable of caring for his or her child by the Georgia courts. This may be considered if the parent does any of the following:
If any of these circumstances apply, the parent may give up parental custody rights voluntarily or be deemed “unfit” and lose such rights by court order.
However, each case will be examined in detail before such a determination is made. Parental rights are only terminated in extreme circumstances where the child’s upbringing or wellbeing is at risk.
A range of factors will be considered before a parent is adjudged to be “unfit” in Georgia. Judges will look for the following “red flags” regarding the behavior of parents and the children:
A parent with a history of child abuse is an obvious red flag when courts make child custody decisions. If Child Welfare Services have been involved due to past cases of reported abuse or neglect, this will be considered.
A history of domestic violence is another obvious warning sign when judges issue child custody orders. If one parent has been physically or emotionally abusive to the other parent (and the child has witnessed it) this would be reasonable cause for declaring a parent “unfit”.
Alcohol or drug abuse from one parent could be a contributing factor in denying a parent custody on the grounds of being “unfit”. Substance abuse assessments can be ordered to establish the extent of the abuse.
Parents are expected to protect their children from activities that could harm their development or psychological wellbeing. For instance, young children should not be allowed to watch R-rated movies. A pattern of failing to set age-appropriate limits is a red flag.
If there is a disconnect between the child and one of the parents and a failure of the latter to respond appropriately and provide for the needs of the child, it could be a sign that the parent is “unfit.”
If one of the parents has little history of involvement in the upbringing and welfare of the child or seems incapable of looking after the child without assistance, it may count against that parent in a custody hearing, especially if other factors mentioned here are present.
Bringing up a child is most effective when it is a joint effort between both parents. If one parent refuses to communicate and wants to make unilateral decisions not involving the other parent, it could be seen as detrimental to the child.
If one parent suffers from psychiatric illness, the welfare of the child could be at risk, and this will be an important consideration with custody. If the parent can demonstrate suitable treatment for the condition, it will work in their favour.
If a child reacts negatively (fear, indifference, hatred) towards one parent consistently, this may be taken into account by the courts when deciding custody.
No single factor described above will be used to make the determination of an “unfit” parent, but a combination of these factors would certainly raise concerns when making custody decisions.
In cases of serious abuse or neglect, an “unfit” determination is far more likely.
Georgia’s laws allow close relatives, such as grandparents, aunts, and uncles, to gain custody of a child if it is shown that the child’s parents are “unfit” or the parents relinquish their parental rights voluntarily.
In such cases, the judge would need to determine that the child’s wellbeing would be better served by placing him or her in the care of a relative.
Remember, however, that a parent’s right to custody of their children is fundamental and protected by the US Constitution.
Trying to show that a parent in “unfit” challenges this basic right and is a major undertaking that requires considerable evidence. It should never be entered into lightly.
When a child’s safety or wellbeing is at risk, a close relative of the child or the State of Georgia can apply for temporary emergency custody (an ex parte order) to be issued by the courts.
Typical examples of when this may occur include:
You must apply for a Motion for an Emergency Hearing at the court. This hearing may even be scheduled within 24 hours. The judge will hear evidence and make a decision.
Under an emergency order, a parent may have to appear in court or undergo a drug-testing program, and the child placed either with a close relative or in foster care.
This does not terminate parental rights but should warn parents that changes need to be made.
If you face a custody battle or feel that your children are unsafe with your ex-spouse, one of our experienced Douglasville family attorneys can help. To schedule a consultation, please contact us here.