Yes. You do not need a divorce or a separate habeas corpus case to have custody decided.
Custody Comes Along With the Support Claim
Breeden v. Breeden, 202 Ga. 740 (1947), states the rule directly. “A wife living in a bona fide state of separation from her husband may maintain against the husband an action in the superior court for alimony for the support of their minor child, which the father is by law obliged to support, and in the same action may seek the custody of the child.”
The Court Keeps Control of the Case
Breeden also shows what follows once the court takes up custody. The parties were fighting over a six month old daughter. The judge first gave temporary custody to the mother, then later to the father pending a final hearing, expressly retaining jurisdiction.
The mother then had her lawyer dismiss the petition and took a habeas corpus case to the ordinary instead. The Georgia Supreme Court held the dismissal was ineffectual, that “jurisdiction of the subject-matter and of the parties remained in the superior court,” and that the ordinary had no power to act.
Once a Georgia court has taken up your child’s custody, you cannot withdraw and start over somewhere more convenient.
If You Agree
OCGA 19-9-5 lets parents present an agreement on “any and all issues concerning custody of the child.” The judge “shall ratify the agreement” and make it part of the final judgment unless the judge makes “specific written factual findings” that it would not be in the child’s best interests.
Note the statute’s own limit. For its purposes, “custody” does not include payment of child support.
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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!