Yes. Georgia law does not favor mothers or fathers in a custody case, and a father can win custody on the same terms as a mother.
What the Statute Says
Under OCGA 19-9-3(a)(1), when custody is at issue between the parents, “there shall be no prima-facie right to the custody of the child in the father or mother.” It adds that “[t]here shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.”
The judge decides custody, not a jury. Under OCGA 19-9-3(a)(2), the judge’s duty is “to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness.” None of the best interest factors in OCGA 19-9-3(a)(3) turns on a parent’s sex.
Examples
For example, in Powell v. Powell, 277 Ga. 878 (2004), the evidence showed that “both parents were fit and proper parents and each had a loving relationship with the child.” The trial court gave primary physical custody to the father, and the Georgia Supreme Court affirmed.
Similarly, in Rose v. Rose, 294 Ga. 719 (2014), the father conceded that the mother was essentially a good mother. Even so, the trial court awarded him primary physical custody, and the Supreme Court affirmed on evidence that his work schedule let him devote more time to the child, that the child was better behaved in his care, and that he provided more nutritious meals.
Unmarried Fathers Must Legitimate First
The rule is different when the parents never married. Under OCGA 19-7-25, “[o]nly the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child.” So an unmarried father’s first step is a legitimation petition, which can include a claim for custody. Our posts on legitimation explain how that case works and what it changes.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!