My child’s mother won’t let me see him. What are my rights as his father?

Written by Rockefeller Law Center

First, a biological unmarried father starts out with almost no rights. Having his name on the birth certificate does not change this. He has no right to see his child, no inherent right to pass on his estate to his child, no custody rights concerning his child, etc.

Second, this father can be forced by the mother to pay child support, even with no right to see the child.

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What do I need to know about Custody?

Written by Rockefeller Law Center

If children are involved in litigation, it will be that much harder for all parties involved. This is the one area where you must try to leave your own emotions aside and do what is best for your children.

There are two different types of custody – "Legal Custody" and "Physical Custody." Legal custody is about who makes decisions about a child’s medical, educational, religious, and overall well being; physical custody is about which parent actually has a child live with them either all of the time or most of the time. Custody issues are always decided only by a judge, there is no right to a jury trial in a custody battle; child support can be decided by either a judge or a jury, although, typically the parties let the judge decide support issues only with custody.

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What happens at a temporary custody hearing?

Written by Rockefeller Law Center

The temporary custody hearing is usually a separate hearing from the temporary hearing concerning property and alimony. The judge at a temporary hearing decides temporary custody and child support issues. Typically, the temporary hearing is the foundation for a final custody order although, depending on the time of year when the temporary custody hearing is held, the judge may or may not address summer and holiday visitation.

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How do I gain rights to my child? Once I do, what can I expect?

Written by Rockefeller Law Center
You can do this one of two ways.

Option one, you can file a legitimation action in the courts; this is exclusively the father’s right to seek (or someone acting as the father’s legal representative). Except in rare cases, this is filed in the Superior Court of the county in which the mother lives. In even rarer instances, one can actually be filed after the father’s death, if, while alive, he evidenced his intent to be a father.

Option two is marriage to the mother. The act of marriage is effectively the same as a legitimation action, assuming no one else has legitimized the child either through a court action or marriage. In the case of the latter, the rights would be determined by the divorce action.

Thanks to recent changes in Georgia Law, a father can seek custody and visitation rights once the child is legitimized. Your intent to do so can be filed with the petition to legitimize.

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My spouse is threatening to divorce me and take the kids. I’m starting to believe I’ll never see then again. Can that happen?

Written by Rockefeller Law Center

This is very unlikely to happen. Judges usually award the parents joint legal custody, even if one parent will have more time with a child as the "primary physical custodian." Only in instances of extreme abuse and/or pathetically poor parenting skills might this happen.

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What does “Primary Custodial Parent” mean?

Written by Rockefeller Law Center

One of the parents is usually designated the "Primary Custodial Parent." Legal and physical custody may be shared jointly, but usually there is one parent that is designated as the "primary custodial parent" of the child and this parent, typically, makes all final decisions concerning the child’s welfare, if the parties cannot agree.

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What does “Non-Custodial Parent” mean?

Written by Rockefeller Law Center

One of the parents is usually designated the "Non-Custodial Parent" and pays child support. This is the parent with whom a child either does not live or does not ordinarily live. The "non-custodial parent" is required to pay child support, based on a percentage of the first $75,000.00 of the non-custodial parent’s salary, any disparity of income between the two (2) parents, the number of children shared between the parties, and the number of other children being supported by the non-custodial parent. There are some factors that can reduce the percentage used to calculate the child support owed, such as shared custody, transportation expenses, health insurance expenses, and other factors.

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Do I have to pay Child Support?

Written by Rockefeller Law Center

Child support is for the child’s benefit and cannot be waived by either parent. If the parties want to agree to less than what the guidelines call for, they must ask the judge to make specific findings of fact permitting the judge to "deviate" downwards. Child support, because it is for the child’s benefit, is really not based on the custodial parent’s economic needs, although that can be a factor considered by the judge; it is based almost entirely on a percentage of the non-custodial parent’s average gross (before) monthly income. This can be proven by tax returns or, in the case of a self-employed or business owner, looking at other factors.

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Can/ will the court modify how much Child Support I pay?

Written by Rockefeller Law Center

Either party is permitted to seek a change of support, once every two (2) years. For instance, immediately after a divorce, one party may seek a change of support, but then that party has to wait two (2) years before seeking another change. However, within that two (2) year period, the other party could seek he or her request for a change of support (and, then that party would have to wait also). The request for change of support needs to be based on significant income or circumstances changes; seeking a change of support without sufficient factual basis for doing so, is a waste of time and money.

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How do I go about changing our custody situation?

Written by Rockefeller Law Center

The parties are not limited by how often they may seek a change of custody or visitation. But, the rules are much stricter about what constitutes the type of facts permitting the judge to grant the request for the change. The legal standard is a "material change of circumstances" adversely affecting the welfare of the child.

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What’s a good reason for seeking a change of custody?

Written by Rockefeller Law Center

For instance, if either parent moves out-of-state, that might be a reason to justify a change in custody, or at least modifying the visitation schedule. The custodial parent being arrested or moving the child into a home occupied by a criminal, might be enough reason to justify a change. There is not, however, any hard and fast rule and each case must be carefully evaluated on its specific facts.

 

 

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When can my child decide which parent to live with?

Written by Rockefeller Law Center

Children are generally not permitted to express which parent they want to live with, as the court system discourage putting the children in the middle of a custody fight. Obviously, as indicated above, children older than eleven (11) are permitted, by law, to exercise the right to speak their minds. A judge might be willing to listen to a younger child, but probably not younger than eight (8) or nine (9). This can create problems in a custody fight, in that a parent may want to testify about what the parent’s child has told them, but the court won’t permit them to do so, since this is inadmissible "hearsay," unless the judge has also agreed (or is required) to listen to the child’s testimony.

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What rights do grandparents have?

Written by Rockefeller Law Center

Generally speaking, grandparents have very little rights. This is especially true of the paternal grandparents for a child born out-of-wedlock, where the biological father fails to file a court action to "legitimate" his child. Neither signing the birth certificate nor paying court-ordered child support is enough to establish the father’s legal rights (and, therefore, those of the paternal grandparents). In contrast, maternal grandparents automatically have rights through their daughter (mother of the child/ren).

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