Hurdles Faced By Working Fathers In Custody Disputes

On paper, Georgia courts are not supposed to automatically favor either the mother or the father in custody disputes.  According to the Georgia Code:

In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.[1]

As a practical matter, however, breadwinners in more “traditional” relationships (where one parent primarily cares for the children and the other parent generates most of the income) face serious difficulties if they wish to have anything close to a 50-50 custody arrangement.

This is because both the Georgia Code as well as a convention are biased toward granting the historical “primary caregiver” primary custody of children in custody disputes.  For example, the Georgia Code lists the following as relevant factors for judges to consider in custody cases:

  • Each parent’s knowledge and familiarity with the child and the child’s needs;[2]
  • Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;[3]
  • Each parent’s past performance and relative abilities for future performance of parenting responsibilities;[4]
  • The love, affection, bonding, and emotional ties existing between each parent and the child;[5] and
  • 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.[6]

It is generally fairly easy for a stay-at-home mother, for example, to argue that she is more familiar with a child’s needs and daily scheduling requirements than the father and that the child is more comfortable with her as a primary caretaker since she and the child have a close bond.  Thus, goes the argument, this status quo should continue, with the mother being the child’s primary caregiver and the father having a typical visitation schedule, which usually amounts to visitation every other weekend as well as one evening per week.

These results are common even if the father has done nothing wrong.  Indeed, it is common for mothers in these situations to receive primary custody even if they are responsible for a marriage breaking part due to issues that can be framed as unrelated to parenting ability (such as adultery).  The standard is, “what is for the best interest of the child and what will best promote the child’s welfare and happiness.”[7]  Thus, fairness toward either parent is not supposed to be the issue.

The Code lists considerations that could be seen as favorable to parental breadwinners.  For example, Courts are to take into account

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.[8]

Since primary custodians are awarded child support from the other parent, however, it is rare for a Court to place custody of a child with a parent because that parent has superior financial resources.

It is, of course, debatable whether these assumptions and conventions are appropriate or healthy, but we must all navigate the legal system as it stands.  At the Berelc Law Office, we have succeeded in obtaining greater-than-average visitation schedules for working fathers and in some cases getting working fathers primary custody.  We have also successfully represented primary caregivers who wished to continue that status quo with their children.

Regardless of your circumstances, if you are a parent facing a custody dispute, you need aggressive legal representation to ensure that you will receive as much time with your children as possible.  At the Berelc Law Office, we have a proven track record of vindicating the rights of parents in all manner of circumstances.

[1] O.C.G.A. § 19-9-3(a)(1)

[2] O.C.G.A. § 19-9-3(A)(3)(D)

[3] O.C.G.A. § 19-9-3(A)(3)(K)

[4] O.C.G.A. § 19-9-3(A)(3)(M)

[5] O.C.G.A. § 19-9-3(A)(3)(B)

[6] O.C.G.A. § 19-9-3(A)(3)(C)

[7] O.C.G.A. § 19-9-3(a)(2)

[8] O.C.G.A. § 19-9-3(a)(3)(C)