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Are some parents inherently advantaged in Georgia child custody?


There is a general conception amongst many Georgia residents and, indeed, around the country, that mothers tend to be awarded custody of children more often in divorce cases. While this may or may not be true statistically, from a legal standpoint, in most cases, neither parent comes into a custody case with an inherent advantage based solely on his or her gender. As this blog has discussed previously, an exception to this may be in cases where an unmarried father has not taken steps to legitimize the child. But, in most cases, where both parties are considered legal parents, such as in a divorce proceeding, the parties begin on an even playing field legally.

This is true because Georgia Code Section 19-9-3 specifically states, near the very beginning of the statute, that no "prima-facie" right to custody of children lodges in either father or mother in a custody dispute between parents. This means, as the law goes on to say, that there is no presumption of fitness in terms of either legal or physical custody in favor of either party. This means that the court is supposed to look at the best interests of the child, the components of which we briefly discussed previously, without regard to the gender of the parents.

This doesn't mean that all parents, as a practical matter, begin on an even footing when it comes to providing evidence that he or she is the proper custodian for the child. It may be that due to economic or other considerations, one parent spent more time away from home, and thus away from the kids, than the other and may not seem to have been as involved in their lives. In some divorce situations, the parent that left the marital home may not be seen as having the same facility for caring for the children if he or she is living in a small apartment or other temporary living arrangement. These are significant factors that may play into how a court sees the best interests of the children.

As can be seen, while Georgia law itself makes no distinction, and indeed prohibits, any preference in custody determination of children based upon the gender of the parent, circumstances in any given case may militate to the advantage of one or the other. How the evidence for what is in the best interest in the child is presented may go a long way in determining the outcome of a child custody dispute.

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