Child Custody FAQs
Many parents have questions about child custody during divorce. We’ve compiled our answers into a collection of most frequently asked questions about child custody. Browse the FAQs and read our answers to learn more about child custody and to help protect your children.
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When should a therapist testify in child custody or divorce cases?
If your child custody or divorce case goes to trial, you and your spouse will likely call numerous witnesses to testify in court. Many couples wonder whether their therapist or child’s therapist should testify in child custody or divorce cases. The court will generally not require therapists to testify, but there are some cases when you may want to have a therapist testify.
Why is therapist testimony beneficial?
Most courts consider therapists to be experts in their given field. In some child custody or divorce cases, a therapist’s opinion may be relevant to the issues in the case.
For example, if a child has psychological issues and requires treatment, the child’s therapist’s opinion may be necessary to determine which parent will be able to better provide for the child. The therapist may also provide opinions as to who should have custody and whether the courts should limit visitation.
Will the therapist give an opinion on custody or divorce decisions?
Either side may call therapists to testify as a fact witness or expert witness depending on the circumstances.
If called upon as a fact witness, the therapist must stick to the facts. He or she will only discuss his or her medical findings, patient’s condition and course of treatment. He or she will not express views on any issues regarding the case.
However, therapists can also be expert witnesses. This means that you may call your therapist or your child’s therapist to give his or her opinion on custody or visitation.
For example, if you want to petition for sole custody or limit visitation because you believe the other parent is harming your child emotionally, you may want a therapist to express his or her opinion on how the other parent treats your child.
Some therapists may find that they are testifying as both a fact and expert witness. Preparation before the trial can help clarify what you expect the therapist to discuss.
Should I have the therapist testify live or just use records?
In most cases, attorneys can subpoena the therapist’s files and records. This is often easier than getting a therapist to take the stand. After getting an affidavit from the custodian of the records, you can submit the records as evidence.
While therapists are not required to take the stand, it may be in your best interest to have your therapist testify in person.
Therapists can offer input in cases where there is concern for the child’s mental well-being.
If the other party claims that you may pose a threat to your child’s psychological well-being, you may bring in your own therapist to establish your stability and ability to parent effectively.
Note: Expert witnesses may require compensation to appear in court.
Will I have issues obtaining records?
The Health Insurance Portability and Accountability Act (HIPAA) protects people’s privacy with regards to their medical records. Releasing your own records is fine, but subpoenaing your ex’s records could violate HIPAA. A therapist can also release your child’s records without issue, unless the opposing party has sole legal custody of the child at the time.
So, should I have a therapist testify in my divorce or child custody case?
The reality is that no divorce or child custody case is the same. Each case will require a careful examination of the facts before determining whether a therapist should be questioned under oath in court. Getting what you want in a family law case oftentimes rests on expert testimony and other evidence you present in court.
A Gwinnett County child custody lawyer can help make sure that you give yourself the best chance at success by presenting your strongest evidence. Attorney David Ward has spent years fighting for his clients in complex divorce and child custody cases. His experience and dedication can give you a leg up in the courtroom. To schedule your REAL Case Analysis today, call 770-383-1973.
Can a child choose which parent to live with in Georgia?
When Georgia parents get divorced, child custody is one of the main issues that needs addressing. The court will typically award one parent with physical custody of the child. However, after a certain age, a child can choose which parent to live with in Georgia.
At what age can a child choose which parent with which to live?
According to GA Code § 19-9-3(5), children who are 14 years old or older may choose which parent they want to live with primarily. Once the child has made a decision, he will have to sign an Affidavit of Custody Election and submit it to the court.
At what age will the court consider the child’s wishes?
Children between the ages of 11 and 14 may voice their opinions on custody arrangements per GA Code § 19-9-3(6). The court may consider this opinion when determining which parent will be the child’s primary custodian. However, the court is not obligated to go along with the child’s decision. Children in this age range do not have the final say on where they get to live.
Will the court always grant the child’s wishes at 14? When will it not grant the request?
Not always. The court has the right to go against the child’s wishes in order to protect the best interests of the child.
According to GA Code § 19-9-3(3), judges will consider a number of factors when determining the best interests of the child. Some of these factors include:
- Each parent’s home environment
- Each parent’s capacity to provide for the child’s basic needs
- The capacity to maintain stability in the child’s life
- The mental and physical health of both parents
- Each parent’s involvement in the child’s daily activities
- Evidence of substance abuse by either parent, family violence, or child abuse
- The emotional ties existing between the child and each parent
It is the court’s responsibility to place the child with the parent that can best ensure the child’s safety and well-being.
Is a child’s decision enough to modify a child custody order?
Parents may file a petition to modify a child custody order if there is a substantial change in circumstances that warrants a custody change.
Courts typically consider health complications, new jobs or relocation as significant changes. The courts may also consider a child’s selection of a parent after reaching the age of 14 a substantial change in circumstances, per GA Code § 19-9-3(5). As a result, a child custody agreement can require modification based on a child’s desire to live with one parent over the other.
However, a child can only make a custody selection once over a two-year period from the date of the last selection. The courts will still consider the best interests of the child before making any modifications.
Gwinnett County family law attorney David Ward knows how important child custody matters are for separating parents and has years of experience dealing with such cases. Please contact The Ward Law Firm at 770-383-1973 for your REAL Case Analysis.
What is a guardian ad litem for Georgia custody cases?
A divorce can be a frustrating and traumatizing experience for anyone involved, but this is especially true when it comes to the effect it has on children. Most parents will go out of their way to ensure no harm comes to their children during a child custody case, but if a judge is worried that the parents are not representing the child’s best interests, the judge may appoint what is called a guardian ad litem to the case.
Parties in the case may also agree to appoint a guardian ad litem for the duration of the case.
What is a guardian ad litem?
A guardian ad litem (GAL) is an individual, sometimes an attorney or mental health professional, who acts as the child’s voice throughout the child custody or child custody modification process. This ensures that the court is able to act in the child’s best interests. The guardian will then give her recommendation on what actions the court should take to uphold the best interests of the child.
If the GAL is not an attorney, she must be a Court Appointed Special Advocate (CASA). CASA training meets the requirements to be a GAL. She must also receive special training administered by the Office of the Child Advocate for the Protection of Children.
What does a guardian ad litem do?
To ensure the court acts in the best interests of the child, guardians ad litem must investigate all aspects of the case to determine the best custody choice for the child.
To represent the best interests of the child, the GAL may:
- Interview the child and any other involved parties (e.g., parents, family members, teachers, religious leaders, coaches, etc.)
- Request the child’s medical and educational records
- Request the child or parents undergo psychological testing
- Visit the child’s home
- Investigate relationships
After the GAL has conducted her investigation, she will draft a report with her recommendations. While the GAL will consider the child’s wishes, she will always act in the child’s best interests (e.g., if the child wants to live with one parent, but the GAL finds that parent has a substance abuse problem, she will go against the child’s wishes).
If the parents disagree with the GAL’s recommendation, they can each present witnesses and/or evidence as to why they disagree, but the judge has the final say.
Why is a guardian ad litem important to my Georgia child custody case?
Because Georgia courts take the recommendations of guardians ad litem very seriously, your entire case could rest on the GAL’s opinion of you. If the GAL believes you are an unfit parent, she may recommend that the judge award custody to your spouse and possibly even limit visitation.
To ensure that you protect your rights and your child’s best interests, enlist the help of a Gwinnett County child custody attorney. David Ward will represent you throughout your case and make sure the guardian is representing your child’s best interests.
Contact the Ward Law Firm to schedule your REAL Case Analysis today: 770-383-1973.