Georgia’s HB 1140

Revision of Presumption of Custody

There is a bill currently being considered on the floor of the GA House, HB1140 formally titled “Domestic relations; revise presumption in cases in which the custody of any child is at issue” The bill title is misleading because currently there is no presumption of custody.

The bill appears innocuous enough, almost a simple administrative adjustment to the act. It is not. HB 1140 would fundamentally change how child custody is handled in the courts moving forward and it is not necessarily in the best interest of the child. HB 1140 seeks to change the legal standard of the best interest of the child to the presumption of joint custody.

HB1140 is sponsored by Jasmine Clark (108th), Todd Jones (25th), Rhonda Burnough (77th), Chuck Efstration (104th), and John Carson (46th).

Currently, in all states, the legal standard in child custody cases is — the best interest of the child. Why is this the standard? Child custody is about children. It is not about the parents. At its core child custody is about doing whatever is necessary to ensure that the health and welfare of the child is secure.

Here is why this bill MUST NOT PASS!

1. Removes the Legal Standing of “Best Interest of the Child”.

Currently, the legal standard is the “best interest of the child”. In effect, the court acts as the guardian (guardian ad litem) for the child who when a minor often has no voice during these custody hearings. It is the responsibility of the Judge to decide, once provided all the facts and any relevant information, what is in the best interest of the child. ANY presumptions, such as the one proposed by this bill, would be in direct conflict with the legal standard, in the best interest of the child.

Why is the legal standard of, in the best interest of the child, so important? Custody at its core is about the child. Where will the child live? What religion will the child practice? What foods will the child eat? How will the child’s health care be provided? How will the child be financially supported? Child custody is not about the parents.

Why is the legal standard of, in the best interest of the child, so important? Custody at its core is about the child. Where will the child live? What religion will the child practice? What foods will the child eat? How will the child’s health care be provided? How will the child be financially supported? Child custody is not about the parents.

HB 1140 proposed revision (section to be removed in bold, revised in italics)

“(a)(1) In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother a presumption, rebuttable by clear and convincing evidence to the contrary, that a child’s interests are best served by equal or approximately equal parenting time with each parent. Alternative forms of custody may be considered by the judge at either a temporary or permanent hearing in the event that there is a finding that clear and convincing evidence exists that either parent is not fit, willing, or able to participate in such an arrangement. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.

Currently, the judge can consider issues of child support. HB 1140 would remove that consideration from the Judge. Why? Any parent will tell you that the financial support of a child is key to raising a healthy child. Why would HB 1140 seek to remove this one consideration from the Judge? HB 1140 is a thinly veiled attempt to reduce the child support of the non-custodial parent. Supporters of this bill will tell you that HB 1140 has no impact on child support. They are wrong. HB 1140, would allow the Judge to split or reduce the amount of child support.

2. Removes consideration of child support.

Currently, the judge can consider issues of child support. HB 1140 would remove that consideration from the Judge. Why? Any parent will tell you that the financial support of a child is key to raising a healthy child. Why would HB 1140 seek to remove this one consideration from the Judge? HB 1140 is a thinly veiled attempt to reduce the child support of the non-custodial parent. Supporters of this bill will tell you that HB 1140 has no impact on child support. They are wrong. HB 1140, would allow the Judge to split or reduce the amount of child support.

HB 1140 proposed revision (section to be removed in bold)

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

3. HB 1140 Removes a child’s right to inform the court of their choices.

Currently, once a child reaches the age of 14, the child has the right to inform the court with whom they would like to live. HB 1140 would strip children of this right. HB 1140 goes one step further and strips the judge’s right to consider the child’s opinion, particularly when children have so few rights. Why would a bill go so far as to strip a child of their rights and remove Judicial authority?

HB 1140 proposed revision (entire clause removed)

(5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply. (6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child’s desires shall not be controlling. The judge shall further have broad discretion as to how the child’s desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.

In my opinion, this HB 1140 will have a detrimental impact on children in Georgia. Rather than having each child’s case considered and decided based on their context, the Judge’s hands will be tied with mandates to presume a type of custody arrangement that may not be in that child’s interest. This bill does nothing to address the phenomenon of absentee parents or parents that fail to pay child support. The supporters of this bill will state that parents that are awarded joint custody are more likely to be more engaged in their children’s lives and are more likely to pay child support. What their argument ignores is that parents awarded joint custody are ALREADY ENGAGED in their children’s lives and are CURRENTLY financially supporting their children.

Currently, once a child reaches the age of 14, the child has the right to inform the court with whom they would like to live. HB 1140 would strip children of this right. HB 1140 goes one step further and strips the judge’s right to consider the child’s opinion, particularly when children have so few rights. Why would a bill go so far as to strip a child of their rights and remove Judicial authority?

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Dr. Elizabeth N. Webster

Dr. Elizabeth N. Webster

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Fmr Candidate for Ga State House. Epidemiologist. Researcher. Business Owner. Civically Engaged.