What is involved in the “Best Interests of the Child” standard?

By: Andrew T. Bennett, Esq.

Individuals facing a divorce with custody or any custody action generally, question the types of information a Judge will consider when making a temporary or final custody determination. O.C.G.A. § 19-9-3(3) contains the judicial test known as the best interests of the child test. A Superior Court Judge sitting in Georgia is in no way limited to the statutorily enumerated provisions outlined therein (note the bolded text below) yet, they do provide some insight into what types of information are considered. The statute specifically states:

(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, except to the extent as provided in Code Section 30-4-5 and paragraph (3) of subsection (a) of Code Section 19-9-3 and such factors as provided in Code Section 15-11-26;

(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.

O.C.G.A. § 19-9-3

It is important for individuals involved in actions of this type to understand that decisions made and actions taken by parents once an action is filed (or the Defendant is otherwise served with notice of an action) is relevant and will likely be used to either sides advantage in a custody proceeding. That is most certainly the case when parents: 1) Attempt to involve the child in the divorce 2) Attempt to alienate the child from the other parent; 3) Use the child as a weapon in the proceedings; 4) Neglect or otherwise do not care for the child in a way that is appropriate.

Some jurisdictions within Georgia have what is known as a Standing Order. That Order goes into effect once an action is filed for the Plaintiff and it applies to the Defendant once they are served with notice of that action.  Often, and unfortunately, parents faced with the potential loss of custody wish to rally the child to their side in the face of a claim of adultery or other transgression during the marriage or relationship. This may appear to be a good idea good idea at the time, but often, those actions come back to haunt the parent later in the proceedings. Further, in Houston County, our Standing Order ( link ) covers a variety of issues that can be addressed by filing a Motion for Contempt.

Custody cases are frequently contentious and heavily litigated. The actions of the parents throughout the course of the proceedings matter. Take the time to seek advice before hitting send on that emotional response via text or email. Be wary of the fact that Georgia is a one-party state for the purposes of phone conversations. The goal is, as it should be, is to establish yourself and the environment you offer as what is in the child’s best interest.

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