It Takes a Village: A Client’s Circle of Friends Can Impact a Custody Case

By: Jessica Reece
HHCM Family Law

Individuals going through a divorce often think of it as a private concern between two adults. But when a court is looking at custody issues, and determining what is best for the children involved, the net may be cast wider than the immediate, nuclear family and many clients are not aware their personal lives could be so evaluated in open court and need to be advised accordingly early-on in the case.

The standard for custody pursuant to Georgia law is what is in the best interest of the child. Pursuant to statute, the judge may “take into consideration all the circumstances of the case . . . 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.” OCGA Sec. 19-9-3. This term “circumstances” is read very broadly and includes more than the bond between parent and child or how many soccer games and parent teacher conferences each parent attends each year.

In other words, in evaluating circumstances for custody, the judge (or a court-appointed expert such as a guardian ad litem or psychologist) may look past immediate family members in order to evaluate the entire village the children are exposed to through each parent.

For example, one factor that a judge may consider in determining custody is the home environment of each parent. This consideration often brings in third-parties where one parent is renting an apartment or has moved in with a roommate. If a custody case becomes combative, the roommate might be called into court to testify about his or her lifestyle choices under the argument that, because the children will be exposed to this roommate on a regular basis, his or her personal choices are relevant to the home environment. Landlords may also be brought in to testify about what sort of lifestyle each parent lives when the children are, and even when they are not, around. Many parents do not expect to have their personal lives so evaluated, but in custody disputes such issues often become relevant and so clients should be advised accordingly.

Another unique issue, especially for cases that have been languishing multiple years, is subsequent romantic relationships. Adultery is a crime in Georgia, but where a custody case has been pending for more than two years the parents may have moved on romantically. In contentious custody disputes these third-parties may be brought into the legal fray because the children are, or may be, exposed to the new love interest. Many parents are unaware that their new boyfriend or girlfriend’s lifestyle may be directly relevant because romantic choices indicate that parent’s decision-making and home environment and, so, a Court may consider that third-person’s influence on the children very relevant to the proceeding.

The village can also extend to mere acquaintances. For example, a couple may enjoy going out to concerts regularly where one parent enjoys drinking what may be considered to be a few too many beers. During the marriage, this may not be an issue. But once the split happens, going to concerts and drinking may suddenly become a point of contention and therefore a judge, or a Guardian, may start looking at who else is involved in those activities. A Guardian may interview the drinking buddies to determine whether there is a valid complaint of substance abuse. These third parties are often hesitant to get involved, but as witnesses to the parent’s lifestyle they may be relevant to a custody evaluation.

It is also important to advise clients that Georgia statutory law provides no presumption that either parent has a prima-facie right to custody of a child. In other words, both a mother and a father have equal standing as parents under the law. When counseling parents in a divorce it is imperative to remind a client that, no matter how bad the relationship between the two parents may have devolved, the tenor of that relationship does not necessarily translate to the one between a parent and a child.

In sum, it is imperative to advise clients that the emotional and financial ramifications of divorce can extend far beyond two consenting adults. Although divorce does not have to be a dirty word and many times the two people dissolving their marriage contract can agree on a private settlement, it is important to advise them that they should be prepared for an evaluation into all facets of their lives, including third parties, especially in cases where custody is disputed.

Jessica Reece practices family law with the law firm Hedgepeth, Heredia, Crumrine & Morrison. She currently serves on the Executive Council of the Young Lawyer’s Division of the State Bar of Georgia and is a member of the 2014 State Bar Leadership Academy. Special thanks to Hannibal Heredia for his assistance with this article.