Valdosta, GA asked in Child Custody for Georgia

Q: Hello, Me and my child’s father just finished a final order last year and these past weeks my son has not been wanting

To go to his father house due to exclusive smoking, guns and bad language and he told us he is tired of it. He’s only five years old. In the final order it states no guns no drugs and yet he defies it all. The father has been rejecting visitation. What should I do?

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1 Lawyer Answer
Zachary Taylor Beck
Zachary Taylor Beck
Answered
  • Divorce Lawyer
  • Rome, GA
  • Licensed in Georgia

A: Assuming you and your child's father share joint legal and physical custody pursuant to the final divorce order; you would petition for a modification of child custody (most superior court clerk offices have forms) in the superior court that issued the final divorce order. Note, you will have to attend the temporary and final hearings which are bench trials (i.e. judge presides). Thus, I would highly recommend hiring an attorney who knows how to present evidence and make legal arguments based on the evidence tendered.

However, if you decide to modify your child custody arrangement without a lawyer you will need to show: 1. there has been a material change in circumstances affecting the welfare of the child; and 2. it is in the best interests of the child for you to gain full physical and/or legal custody (stated otherwise: for the child's father to lose his joint physical and/or legal custodial rights).

You will likely have a tough time proving that mere smoke, gun possession, and cursing are enough to establish a material change in circumstances; unless you can prove your child can possess the gun(s) and result in harm. However, the material change and best interests standards are fact intensive and courts have wide discretion in determining what meets those standards. You will need to provide evidence of the unattended guns (if they even are), cursing, etc. at the temporary and final hearings (i.e. texts, instant messenger, witness testimony, photos, etc.). You will likely have to provide evidence that the matter is more than a mere "he said she said" for the court to strip your child's father of his custodial rights, which courts do not do lightly. Also, note that courts usually do not allow the child to testify. Thus, unless you have eyewitness testimony and other documentary evidence, you may find it difficult to get sole custody of your child.

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