State Laws and Legislation

Georgia Custody and Visitation Law

Georgia Custody and Visitation Law
Courts in Georgia typically have not restricted custody and visitation of gay or lesbian parents as long as they conceal their sexual orientation. It would seem that courts would not look favorably on granting custody and/or visitation to a gay or lesbian parent who did not conceal his or her sexual orientation or the nature of a relationship with a same-sex partner. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Georgia state law addresses how custody is determined, the discretion of the court, the right of children 14 or over to select their custodial parent, the consideration of child’s educational needs, when visitation rights may be reviewed and notification of change in residence.

In a 2006 case, the Georgia Court of Appeals reversed a lower court decision that changed joint custody between both parents to primary physical custody for the father because the mother was cohabiting with another woman. The Court of Appeals ruled that cohabitation provided no basis for a change in custody absent evidence of harm to the child.

In one 1996 case, In re R.E.W., the appellate court reversed a lower court’s ruling that required supervision of a father’s visits because he was gay. The appellate court held that the father should have unsupervised visits because he had concealed his sexuality from his daughter and there was no evidence that his sexual orientation had any adverse affect on her.

In a 1979 case, Gay v. Gay, a child was placed in state custody because both parents were deemed unfit. The trial court made an express finding that the father was unfit based on evidence of a limited income and the fact that he had five illegitimate children. There was no evidence presented that the mother was unfit. In fact, evidence was presented that she was gainfully employed, and the caseworkers at the Division of Family and Children Services recommended that custody be granted to her. The trial court, however, did not follow the recommendation and awarded custody to the state because there was hearsay evidence that the mother was engaging in “homosexual” behavior. The appellate court found that “there was no competent evidence introduced at the hearing to show that this was presently the case” and awarded custody to the mother.

In a 1977 case, Buck v. Buck, the trial court awarded temporary custody to the mother until the child reached the age of 30 months, at which time there would be a psychological evaluation of both parties and a final determination of custody. The father appealed, arguing that the court abused its discretion in awarding custody to the mother after she admitted to being involved in same-sex relationships. The appeals court refused to overturn the trial court’s decision, stating that the transcript contained reasonable evidence which supported the decision to award temporary custody to the mother.

One 2002 case, Burns v. Burns, involved an ex-husband bringing a motion of contempt against his ex-wife, arguing that she violated the conditions of the visitation agreement when she had the children stay overnight while her same-sex partner was present. The court visitation agreement stipulated that no child visitation would occur during any time the party being visited cohabited with or had overnight stays with any adult to whom that party was not legally married or related within the second degree. The mother argued that her civil union should be honored as a marriage in Georgia. The appellate court held that the mother and her same-sex partner were not “married” in Vermont, but had entered into a civil union and furthermore, under the federal Defense of Marriage Act, Georgia was not required to give full faith and credit to marriages between same-sex couples granted in other states. Thus, the court found the mother to be in violation of the visitation agreement.

Citations: GA. CODE ANN. §19-9-1 (2002); Moses v. King, 2006 Ga. App. LEXIS 1208 (Ga. Ct. App. 2006); In re R.E.W., 471 S.E.3d 6 (Ga. Ct. App. 1996), cert denied, 472 S.E.2d 295 (Ga. 1996); Gay v. Gay, 253 S.E.2d 846 (Ga. Ct. App. 1979); Buck v. Buck, 233 S.E.2d 792 (Ga. 1977); Burns v. Burns, 560 S.E. 2d 47 (Ga. Ct. App. 2002), cert. denied, 2002 Ga. LEXIS 626.