Abuse of a child is a factor a Georgia judge may weigh in deciding custody, and a parent who alleges it can ask the judge to have both homes investigated.
What the Statute Says
OCGA 19-9-3(a)(3)(P) lists “sexual, mental, or physical child abuse” by either parent among the best interest factors. Abuse of a child by a parent can also be family violence, which our post on family violence and custody covers.
Asking for an Investigation
When custody is contested, OCGA 19-9-4(a) lets a parent move for an investigation by reciting “actual abuse, neglect, or other overt acts which have adversely affected the health and welfare of the child.” The judge may then have the family and children services agency investigate the home of each parent, and may make either parent pay for it. Both parents may see the report before the hearing and cross-examine whoever prepared it.
In Davis v. Davis, 253 Ga. 73 (1984), the trial court ordered such an investigation, then awarded the father permanent custody without granting the mother’s request to see the report. The Georgia Supreme Court reversed: “We view this provision as mandatory.”
Discipline or Abuse?
The Family Violence Act excludes “reasonable discipline,” as our post on getting a protective order to protect a child explains. In a custody case, where discipline ends and abuse begins is for the judge.
In Kuehn v. Key, 325 Ga. App. 512 (2014), a case that changed an existing custody order, a stepfather and the mother paddled a nine-year-old with a wooden paddle, leaving a bruise across most of his hip. The mother argued the punishment was neither excessive nor unduly severe. The trial court moved primary physical custody to the father, citing the child abuse factor among others, and the guardian ad litem had recommended the change. The Court of Appeals affirmed the custody change, because the judge did not have to believe the mother and stepfather.
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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!