WHEN DOMESTIC RELATIONS BECOME LEGAL MATTERS |
a couple and co-mingled funds. Two years later, a child Jack was born. John signed the birth certificate. The pressures of parenting and financial obligations strained the relationship. John moved out. Now, Jane wants child support. Both want custody. They cannot even mutually divide their belongings. What legal options may John and Jane pursue? LEGITIMATION & CUSTODY Even though Jack has lived with John and he is on the birth certificate, Georgia law gives Jane sole parental authority over Jack. John's visitation is at Jane's discretion. In order for John to secure his parental rights, he must file a petition to legitimate the child. O.C.G.A. § 19-7-22 authorizes the petition to legitimate. The petition is filed by the father in the superior court. The court may order paternity testing, appoint a guardian ad litem to represent the interest of the child, and hold a formal jury trial of the matter. An order of legitimation may declare the child legitimate, change the minor child's name, provide for reimbursement of birthing expenses, and set child support. Once Jack is legitimated, John may file a petition for custody and visitation rights. When determining custody, the trial judge exercises sound discretion to determine the best interest and welfare of the minor child. Blackburn v. Blackburn, 168 Ga. App. 66, 308 S.E. 2d 193 (1983). No specific formula is used to determine custody and visitation. However, both parents have equal standing to request custody. If both parents are fit, the court must consider joint custody. Upon reaching 14 years of age, a child has the right to select a custodial parent provided the parent is a fit and proper person to have custody. O.C.G.A. § 19-9-1. Entry of a court order is required to effectuate an older child's election. Although not binding, the court must statutorily consider the custody desires of children 12 and 13 years of age. Id. In order to change custody, a parent must show a material change in condition arising since the previous order which substantially affects the interest and welfare of the child. Nodvin v. Nodvin, 235 Ga. 708, 221 S.E.2d 404 (1975); Martin v. Greco, 225 Ga. App. 752, 484 S.E. 2d 789 (1997), In Re RR, 222 Ga. App. 301, 474 S.E. 2d 12 (1996). CHILD SUPPORT Jane may secure child support through several avenues. If a petition for legitimation is filed, she may counterclaim for child support. Jane may file a petition to determine paternity through a private attorney. However, her filing would permit consideration of visitation within the same proceeding. If Jane does not wish to retain a private attorney, she is entitled to open a case through her local child support office. An action through the child support office cannot address custody or visitation issues. Lastly, if John fails to provide support, Jane may file a warrant for criminal abandonment, which the state prosecutor would pursue. O.C.G.A. § 19-6-15 governs awards of child support. Child support is based upon the non-custodial parent's gross monthly income. Gross income includes all wages and salary income, all compensation for personal services, interest, dividends, net rental income, self-employment income, and all other income except need-based public assistance. The child support guidelines are suggested percentages of gross income to be awarded as support.
2 3 4 5 Certain factors may justify deviation from the child support guidelines. These include:
continuing garnishment. Georgia child support awards bear interest at a rate of 12 percent per annum. Failure to pay child support subjects the payer to contempt proceedings, revocation of drivers and professional licenses, incarceration, and other debt collection practices. DIVORCE Aren't John and Jane common law married? If so, then Jack is legitimate, and the court can determine custody and visitation, set child support, and equitably divide the personal property and debts pursuant to divorce laws. Parties cannot enter into a common law marriage after January 1, 1997 in Georgia. O.C.G.A. § 19-3-1.1. Further, merely living together does not create a common law marriage. To enter a common law marriage, the parties must intend to marry, be able to marry, and hold themselves out as married. Both ceremonial and common law marriages are dissolved through divorce actions. Neither John nor Jane can file a divorce action. A divorce action dissolves the marital contract, awards custody and visitation rights, sets child support and alimony, and equitably divides marital debt and property within one proceeding. The court uses the same principles discussed above when determining custody, visitation and child support. Alimony is an allowance out of one party's estate for the support of the other party. Alimony is awarded in accordance with the needs of the recipient and the ability of the other spouse to pay. O.C.G.A. § 19-6-1. Because they are not married, neither John nor Jane may request an award of alimony. When dividing property and debt, the court employs its discretion based upon consideration of various equitable factors. These factors may include the contributions of the parties, the estates of the parties, the duration of the marriage, the conduct of the parties, and any prior marriage of the parties. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982); Peters v. Peters, 248 Ga. 490 (2), 283 S.E. 2d 454 (1981). If John and Jane cannot mutually agree on how to divide their property and debts, then their legal remedy is to file a separate civil action which will not be decided upon domestic relations case law and code and in which their past relationship will not accord special status or entitlement. CONCLUSION The dissolution of John and Jane relations may result in several different court actions and modified in future years. In order to protect and pursue their interest, John and Jane each need to consult independent legal counsel of their choice. Consultation with legal counsel will insure John and Jane make informed decisions and possibly resolve their issues without resort to contested litigation. The purpose of this article is not to provide specific advice but instead to provide a general overview of the issues and lawsuits commonly encountered in domestic relations practice. The family law division of Deming, Parker, Hoffman, Green, Campbell & Daly, L.L.C. may be contacted to schedule an appointment to discuss your specific matter. The above contains general information and is not tailored to a specific legal problem; it should not therefore, be considered legal advice. Do not try to use this information without consulting an attorney to learn how the law affects your unique circumstances. |
Percentage range
- 17-23%
23-28%
25-32%
29-35%
31-37%
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