Will A Court Give Custody To A Family Member?

MLF Team

Will A Court Give Custody To A Family Member?


When you are in the middle of a divorce, or are otherwise a single parent, you might wonder what will happen to your child if you die. If you are married, you might think about what would happen if both you and your spouse died at the same time. Who will take care of your child if neither you nor their other parent is able to? Will the court give custody to a family member? Can you designate whom you want to have custody of your child? What if you want to get custody from the other parent? These questions, and others, are reasonable questions to ask yourself. Fortunately, there are answers to these questions. If you have child custody questions, the experienced Alpharetta family law attorneys with The Millard Law Firm may be able to help. Schedule a consultation by calling (678) 319-9500 today.


What Is the First Petition for Child Custody?


The first petition for child custody is often a petition for custody during a divorce. This petition is included in the divorce paperwork packet per Georgia.gov. If the parents were never married, the first petition may be after the father establishes legitimation and files for custody. Divorce and child custody in the Atlanta area are handled through the .


Child custody in Georgia always goes to a parent unless both parents are dead or found to be unfit, in which case the court may give custody to a family member. There are two types of custody: legal and physical. The custody order will specify which parent has custody and will stay in place until the child turns 18, unless there is a material change in circumstances that warrants modification.


How Do I Get Temporary Custody of My Child?


When one parent has custody, the other parent cannot simply decide they want custody and take the child. They must file for custody. Sometimes, they may need to ask for temporary custody. Parents should also understand that there is a difference between temporary custody and emergency custody.


Temporary Custody


Parents may ask for temporary custody while waiting for a permanent custody order to be entered in a divorce or because they feel the child’s best interests are not being met in the other parent’s custody. The first step is a petition for permanent custody, followed by a petition for temporary custody. Absent special circumstances, these petitions should be filed in the county where the respondent or defendant (or the children) live.


Once the temporary custody petition has been filed, either parent can request a temporary hearing to have their custody rights defined while the permanent order is pending. Parents may request this hearing by filing a “rule nisi” with the court. How long it takes for a  hearing to be scheduled and whether mediation will be required before the hearing is set, will depend on the county in which the petition is filed.


Emergency Custody


Emergency custody is what a parent may ask for if they feel their child is in danger with the other parent. If the custodial parent has a new partner who uses drugs in front of the child, or if the custodial parent has driven under the influence with the child in the car, these are common circumstances under which the noncustodial parent may file for emergency custody.


Like temporary custody, the parent must first file an action for custody, then a motion for an emergency hearing explaining what the emergency is and why a hearing as soon as possible is needed to protect the child. These hearings happen much more quickly than a temporary hearing.


Third Party Temporary or Emergency Custody


If both parents are unable to care for their child due to death, illness, injury, or other circumstances, or if they have abandoned their child, the court may give custody to a family member who requests emergency custody or guardianship. This custody determination may be handled through the probate, juvenile, or superior court, depending on the circumstances. Third party temporary or emergency custody can give grandparents, aunts, uncles, or other concerned relatives legal authority to make decisions for the child’s care.


How Can a Father Get Full Custody?


In Georgia, there are two types of custody: physical and legal. Physical refers to where the child lives, while legal refers to who makes the decisions regarding the child. Georgia favors joint legal custody, while assigning one parent as the primary physical parent and the other as secondary. Getting full custody, or sole custody, is extremely difficult for either parent but may particularly be so for fathers.


Were the Parents Married?


If the parents were married, the father automatically gets equally shared legal custody. He can file a petition to modify custody with the court. Depending on the circumstances, he may also file for temporary or emergency custody.


If the father was not married to the child’s mother, he has no rights to custody or visitation until he establishes legitimation. This means he must prove he is the child’s father. Proving paternity will not only allow him to ask for custody and visitation but allow the child to inherit from him as well.


Who Can Better Care for the Child?


If the parents were married, or once the father establishes legitimation and a petition for custody has been filed, the father must now prove that he is able to care for, support, and protect the child in a manner superior to that achievable through custody shared with the mother.


This can be difficult to prove. In many cases, the father must not only prove that he can better care for and provide for the child, but also that the mother is unfit to have even partial custody. If you are a father seeking full custody of your child, consider reaching out to The Millard Law Firm and scheduling a consultation to review your legal options.


Best Interests of the Child


Judges are expected to award custody based on the best interests of the child. This means the decision is often based on factors such as:


  • Which parent has been the primary caregiver?
  • Who has available time for the child?
  • Who is the most stable?
  • Who has the best ability to provide for the child?


Can an Aunt File for Custody?


Georgia judges decide custody based on the best interests of the child. This means a grandparent, great-grandparent, aunt, uncle, great-aunt, great-uncle, sibling, or adoptive parent can be awarded custody if they can prove it is in the best interests of the child, per Georgia’s . The court will need to determine whether this relative will better promote the welfare and happiness of the child than the parents before they will give custody to a family member.


Anyone not related to the child as listed above would be asking for custody under the “parental rights and fitness doctrine.” This doctrine states that parents lose custody only if they have already lost parental control based on O.C.G.A. § 19-7-1(b) or if they are proven to be unfit. This can be extremely difficult to prove.


Do You Need Help With Child Custody?


Georgia’s custody laws are designed to promote the best interests of the children, which means that it is important to know your rights as a parent regarding child custody and when the court may give custody to a family member. If you are a parent, a grandparent, or another family member with questions regarding custody, a grandparent’s rights, or guardianship, The Millard Law Firm may be able to assist you. Contact our Alpharetta family law office at (678) 319-9500 to schedule a free consultation to review your legal options.