Divorce and Child Custody – Can I File in Georgia

Divorce can be a messy and emotional time, and these emotions are easily magnified when children are involved. As children are affected by their parent’s pending divorce, children can also affect the proper jurisdiction of the case, that is to say, where the divorce can be filed.
What court has the power to hear the facts and make a decision? This question is only answered after first determining the correct jurisdiction, and depending on the circumstances there can be more than one correct answer.

Scenario 1:  Both Parties Reside in Georgia

This is the easiest circumstance.  The proper jurisdiction in this scenario is Georgia so long as the following are met.  The parties have resided with the child in Georgia for six months.  The next question would be which county to file in.  If the parties live in different counties, the proper county to file in is the county in which the defendant resides.

UCCJEA: Home State Jurisdiction

“Home state” is defined by OCGA § 19-41-9(7) as “the state in which a child lived with a parent or a persona acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.  In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.”  These issues are controlled by the Uniform Child Custody Jurisdiction Enforcement Act, or UCCJEA for short.

Scenario 2:  Georgia and another state

Proper jurisdiction becomes less obvious when the parties have already separated and are living in separate states, or are unmarried with a child, and living in separate states.
Scenario two would be when parties who wish to divorce live in separate states. Say mother lives in Georgia with child, and father lives in Alabama. Because child custody would be at issue the court of the child’s “home state” would be the place of proper jurisdiction. Therefore, assuming mother and child have resided in Georgia for six months or more, the divorce would be properly filed in Georgia.

Scenario 3:  Child and Parent in Another State

If the Father and child were living in Alabama six months or more, and mother moved to Georgia and wished to file for divorce the divorce would be properly filed in Alabama. If the mother filed for divorce in Georgia she would substantially risk the Georgia court refusing to hear the case on the grounds that they cannot exercise proper jurisdiction as to child custody. This is because states have adopted uniform statutes as to custody jurisdiction. These issues are controlled by the Uniform Child Custody Jurisdiction Enforcement Act, or UCCJEA for short.

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