FAMILY LAW & DOMESTIC RELATIONS
FAMILY LAW & DOMESTIC RELATIONS
Many clients first contact Price Law Group simply to discuss their particular situation or problems with an experienced attorney in order to merely determine whether legal action can even address their concerns, and if so, what type of lawsuit or legal action that might be.
If you are blessed to be a newcomer to the court system but are having issues with your marriage, child custody arrangement, collecting child support or alimony from a former spouse, or even exploring something exciting like adoption, you are probably looking for basic answers and wondering where to even begin.
If that describes your situation, please take some time to review the main family law and domestic relations topics which we have summarized on the following pages. If you are seeking assistance in one of these areas, and even if you do not see a topic that specifically relates to the issues you are facing, please contact our office to schedule a consultation with an experienced attorney to discuss how we can help you today.
If you are thinking about filing for a divorce or have already been served with divorce proceedings by your spouse, chances are that you have a lot of questions and concerns not just about the future outcome, but what actions you need to take today to protect yourself and your family. At Price Law Group, we understand how difficult it can be to attempt to navigate the complex court system while also experiencing experiencing some of the worst emotional turmoil and anxiety of your life. Consequently, we make it our top priority to take over that burden by answering your pressing questions and ensuring that you understand the process to your satisfaction so that you can focus primarily on picking up the pieces and finding a new path forward.
In Georgia, child custody is divided in two main categories: legal custody and physical custody. According to the law, no presumption exists that either the mother or the father should automatically be awarded custody over the other parent. Generally, legal custody determines who may gain access to certain records regarding the child and who is entitled to make major decisions regarding the child. Decision making authority is typically split into four major areas: educational decisions, medical decisions, religious decisions, and extracurricular activity decisions.
In the majority of cases, legal custody will likely be designated as “joint legal custody,” giving both parents equal access to the child’s records and information and allowing them both to participate in all decision making processes regarding the child. However, in certain situations, one parent may be designated as the sole legal custodian, which restricts the ability of the other parent to access the child’s records or make decisions on behalf of the child, essentially putting them on equal footing as a third party caregiver. Although exceptions certainly exist, sole custody is generally reserved for situations where one parent is considered to be at risk for fleeing the court’s jurisdiction with the child, has engaged in substantial misconduct, or has demonstrated a pattern of interference with the child’s school, medical providers, or therapists to the extent where removing the parent from such communications is deemed necessary.
Even in cases of “joint legal custody,” one party still must be designated as the “tie-breaker” or as having “final decision making authority” as to the four major areas mentioned above. Frequently, decision making authority will be designated as “joint” for all four categories, but one parent, typically the parent exercising primary physical custody, will be designated as the “final decision maker” or as having “tie-breaking authority.” In such a situation, that parent is required to engage in meaningful discussion with the other parent and attempt to reach a joint decision before they may make the final decision in the event of an impasse. In recent years, there has been an increasing trend for parents to split the tie-breaking authority, with each parent being designated as the ultimate decision maker in two of the categories. For example, if the mother feels very strongly about religious upbringing and the child’s educational decisions, she may request final decision making authority in those two categories and offer the father, who is actively involved in coaching the child’s athletics and overseeing his sports related physical therapy, the ultimate decision making authority for extracurricular and medical decision making in exchange. In other cases, the parents may choose to simply designate one parent as the primary decision maker in certain categories who may unilaterally make decisions without first requiring a joint discussion. Such option is most frequently chosen in cases where the other parent is absent or unable to reasonably participate in decision making regarding the child, although many parents opt to take this route even when they are equally involved with the child and able to co-parent effectively. Simply put, there is no true “standard” for legal custody, and each case must be evaluated closely based upon the individual circumstances to determine what is best for each child and family.
Consequently, ensuring that you have proper representation during the negotiation and crafting of the Parenting Plan agreement is crucial to protecting your relationship with your child. The attorneys at Price Law Group are well versed in preparing Parenting Plans that address each of our client’s unique interests, and ensure that these important documents reflect the parties’ true intentions surrounding their custodial agreements down to the smallest details.
A decree modification is a formal legal process used to change the requirements and obligations previously set forth in a settlement agreement approved by the court or other court order. Although property and debt settlements typically cannot later be modified under normal circumstances, a Petition for Modification can be filed to request that the court amend the terms of almost any other court order resulting from a divorce, such as custody, visitation rights, child support, or alimony. As the success of a Petition for Modification depends heavily on whether the Petitioner is able to obtain evidence and use that evidence in court to prove to a judge that a modification is necessary, it is important that your attorney is well versed not only in the laws governing modification petitions, but also in engaging in discovery and other investigatory procedures aimed at pinpointing your ex-spouse’s current financial position or lifestyle changes warranting the requested change.
CONTEMPT AND ENFORCEMENT ACTIONS
When an order is issued in a divorce action, child custody action, child support action, or any other domestic or family law case, one or both parties are typically subject to ongoing obligations to the other party as a part of the Court’s order. For example, one parent may be required to pay monthly child support to the other parent, turn over certain items of property, refinance the marital residence, obtain life insurance, pay alimony to the former spouse, satisfy credit card debt, or make the parties’ minor child available for visitation with the other parent. Unfortunately, the failure of one or both parties to fully comply with all the terms of the Court’s orders is a frequent issue that arises both during the litigation and years after the case has been finalized. When one party finds themselves aggrieved due to the other party’s failure to comply with orders, the available remedy is called a Petition for Citation of Contempt, wherein the party requests the court to find that the other parent is in contempt, and also impose remedies and/or sanctions to ensure the other party’s future compliance. Frequent remedies and/or penalties for contempt may include ordering “makeup” parenting time, modifying visitation details to help ensure future compliance, ordering payment schedules to satisfy monetary arrearages, requiring the party in contempt to pay the other party’s attorney’s fees and expenses, and even incarcerating the party in the county jail as a sanction for particularly willful contempt, or until the party makes a “purge” payment to satisfy child support arrearages. Regardless of the particular type of contempt, the attorneys at Price Law Group are ready to help.
Sometimes situations arise where different individuals need to assume the parental role for a child. This relationship is called guardianship, and under Georgia law there are five (5) main types of guardianships for minors. Those types are:
- Natural guardians or parents;
- Testamentary guardians (individuals nominated in a will);
- Temporary guardians;
- Standby guardians (individuals nominated by a parent or current guardian because of a pending health issue); and
- Permanent guardians.
In order to become a legal guardian, the person seeking guardianship must initiate a legal action in the Probate Court of the county where either the person requesting guardianship resides, or if that person lives outside the state, in the county where the minor child currently resides. Only the person with physical custody or control of the minor child may file the Petition for Guardianship. Importantly, if a child’s natural guardian or parent does not consent to the guardianship, then the Probate Court must dismiss the Petition and no guardianship will be created. Accordingly, if a situation arises where you believe that a parent is unable to properly care for a child, but the parent will not consent to a guardianship, then filing a dependency action or other action in the Juvenile Court to obtain custody of the child may be appropriate. Regardless of the situation, our attorneys at Price Law Group will discuss which particular option is best for you and help you navigate the complexities of the legal system to obtain the necessary results
GUARDIAN AD LITEMS
A growing trend in contested divorces and custody modifications is for the judge to appoint a Guardian ad Litem pursuant to O.C.G.A. § 19-9-3 to represent the best interests of the minor children at issue. Typically, the Guardian ad Litem is a licensed attorney who the judge appoints to assist the court in investigating the circumstances, and is authorized to look into the entire background of the parties, their current homes and living conditions, their intimate and familial relationships, and practically any issue that is tangentially related to the best interests of the child.
Guardian ad Litems are given fairly expansive authority to investigate the parties and issues, and frequently conduct home visits, speak with third party witnesses, visit the child’s school, and speak with the child’s relevant service providers, such as doctors, tutors, or even therapists. The Guardian also has the authority to obtain school, medical, and other records regarding the child by virtue of the appointment order. The Guardian may also be specifically authorized to make binding recommendations during an interim period, coordinate counseling or other mental health services among the parties, and a host of other actions aimed at reducing courtroom conflict and addressing existing issues for the benefit of the children and family. Ultimately, the Guardian will give either an oral or written recommendation regarding custody and visitation, or any other issues relating to the children in the case, which input frequently helps the parties to settle the matter during mediation.
However, if the parties are unable to reach a resolution with the assistance of the Guardian, the Guardian will then usually participate in the final hearing on the matter and give their final recommendation to the judge. Although the judge does not have to accept the recommendation of the Guardian, generally judges acknowledge that Guardians likely have a much greater understanding of the case than the limited evidence which they have been presented, and frequently adopt and use their findings if not their ultimate conclusions. Although each judge may place different weight on a Guardian’s findings and recommendations, it is always vital to your case’s success to make sure you comply with a Guardian ad Litem’s investigation and provide them with the necessary and relevant information to validate your concerns and arguments. At Price Law Group, we have multiple attorneys who regularly serve as a Guardian ad Litem in the Superior and Juvenile Courts.
Accordingly, we are not only able to provide this service to the court and other law firms, but are able to provide in depth counsel to our family law clients who may be dealing with the appointment of a Guardian ad Litem in their own case. This important ability should not be discounted, as approaching the Guardian ad Litem’s investigation appropriately can easily make the difference between success and failure in a custody matter. Schedule your consultation today to discuss how our Guardian ad Litem’s can help.
TEMPORARY PROTECTIVE ORDER AND FAMILY VIOLENCE ORDER
Under Georgia law, there are several statutes and tools that can be used to protect victims of domestic violence and stalking. Although these laws are crucial for protecting actual victims, unfortunately, sometimes people use these same tools to make false allegations and gain an advantage in a divorce or other matter between the parties. Having a protective order issued against you can have long reaching consequences that can affect your day to day life, including your ability to return to your home, possess firearms, or continue your employment unaffected. Simply put, protective orders are serious matters that should not be taken lightly by the Petitioner or the Respondent.
Despite the protective order laws containing forms and other tools to help unrepresented victims navigate the legal system, it is still important to understand the applicable evidentiary rules and how they may affect your ability to make out your case to the judge, as much evidence relevant to stalking or abuse cases may be oral statements classified as impermissible “hearsay” which cannot be introduced at the hearing as evidence. Therefore, it is important to have an experienced attorney on your side to ensure you are able to present your evidence and make out a sufficient case to the judge to obtain the relief that you are requesting. Our attorneys have received specific training in handling Family Violence Temporary Protective Orders, Stalking Protective Orders, and representing clients in the frequently related criminal cases, such as negotiating terms of the Special Conditions of Bond that may also govern provisions of contact between the Petitioner and Respondent. Whether we represent the Petitioner or the Respondent in these matters, our main priority is understanding the goals of our client and ensuring that their rights are represented while ensuring the safety, financial security, and protection of every party involved.
PRENUPTIAL & POSTNUPTIAL AGREEMENTS
Oftentimes, when parties are considering a second marriage, or simply wish to protect their finances and assets prior to their marriage, they may consider entering into a prenuptial agreement, also referred to as a “premarital” or “antenuptial” agreement, or simply “prenup” for short. The purpose of such an agreement is to settle financial and property matters in advance in the event of a future divorce or death, and frequently is put in place to prevent separate property owned by one spouse before the marriage from being divided between the spouses in the event of divorce. Although many people may view a prenuptial agreement as unromantic or a sign that the marriage is not designed to last, when considering that at least half of marriages end in divorce, many experts say that such agreements are simply smart financial planning. Parties in Georgia may also enter into a “postnuptial” agreement, which is essentially a prenuptial agreement entered into after the couple has married, which may be entered into before an attempted reconciliation following an affair, or for almost any reason.
Although a prenuptial agreement is designed to simplify the divorce process, a prenuptial agreement cannot include child support or custody issues based upon public policy issues. Essentially, despite any prior agreement of the parties, the court still retains the power to decide what is in the best interest of the child, and will not uphold an agreement that denies the child the right to financial support from both parents or the opportunity to have a relationship with a fit parent. Similarly, a prenup may not include provisions detailing anything illegal, and inclusion of anything illegal may cause the whole document to be unenforceable. A prenup generally provides a procedure for future cancellation of the agreement, future modification or additions to the agreement by drafting an addendum, or an automatic cancellation after an agreed upon amount of time.
It is important to involve an attorney in discussions regarding any prenuptial or postnuptial agreements, as their involvement is basically imperative for the document to be upheld in court. A court has wide discretion regarding prenuptial or postnuptial agreements, and can refuse to enforce the agreement depending on several factors which either party may assert at a hearing, as follows: whether the agreement was obtained through fraud, duress, mistake, or through misrepresentation or non disclosure of material facts; whether the agreement is unconscionable; or whether the facts and circumstances have changed so much since the agreement was executed that enforcement would be unfair and unreasonable. Accordingly, it is important to take many different factors into consideration and plan accordingly, such as executing the agreement well in advance of the planned marriage date in order to avoid future claims of duress. As the law regarding these agreements and their required components is actually very complex and varies significantly from state to state, it is crucial to the protection of your estate that you consult with an attorney who has experience drafting these agreements and anticipating any future issues that may arise. Schedule a consult with one of our attorney’s today to decide whether implementing a prenuptial or postnuptial agreement may be in your best interest.
LAST WILL AND TESTAMENT
A Last Will & Testament, or “Will” for short, is a legal document designed to address the personal and specific choices of a Testator in the event of their death. Such a document places into writing the Testator’s choices regarding disposition of their personal and real property, and provides specific instructions with regard to exactly how they would like their personal property, accounts, real estate, and any other property to be distributed to their beneficiaries upon their death. Such a document also generally selects one or more trusted representatives, or Executors, who are willing to oversee the implementation of the document and ensure that the Testator’s estate wishes are properly executed. If at any point a Testator or Principal would like to adjust their will or revoke it entirely, they may do so as many times as they wish, so long as they remain of sound mind, or legally competent. Although many individuals hesitate to contemplate what will occur in the event of their death for obvious reasons, it is crucial to execute a Last Will & Testament if you wish for your family to be able to avoid the complicated process of probating your estate, or if you would like to provide for any specific distributions to beneficiaries. Otherwise, your estate will be distributed according only to the laws of the State of Georgia, which is called an intestate estate. In the absence of a valid Will, your intestate estate will be split by your surviving spouse and your living children or grandchildren, or will be inherited in full by your spouse in the event you have no living children or grandchildren at the time of your death. However, under Georgia law, the surviving spouse will always receive at least one-third of the total estate, without considering the number of surviving children or grandchildren. Accordingly, if you wish to avoid the standard intestate split, or to provide for distributions to other beneficiaries such as nieces and nephews, parents, friends, or charities, it is important to consider executing a Will while you remain in good health; otherwise, your family may not even be unaware of your wishes. Schedule an appointment with Price Law Group today to discuss completing this important document.