Karla Walker Attorney at Law
In Georgia, the Courts favor stability for children. As a result the Courts have created a standard that requires the party that seeks a modification to prove that there has been a change in condition that affects the interests and welfare of the minor children. In other words, a parent cannot simply decide that he/she desires to be the primary physical custodian and expect the court to modify the current custodial arrangement. Often one parent starts to earn more money, purchases a bigger house, marries or has additional children and thinks that this should yield a custody modification. Of course there is the all too infamous decision to petition the courts because the noncustodial parent does not want to pay child support anymore.
Georgia requires a showing that there are new and material changes in conditions and circumstances SUBSTANTIALLY affecting the interest AND welfare of the child. The proof must show both a change in conditions and an adverse effect on the child.
Some examples of material change that the Court may consider:
1. Voluntary relinquishement of the child by the custodial parent that is permanent in nature. grandparent, third party, noncustodial parent etc.
2. Instability in housing and basic needs of the minor child
3. Evidence of ongoing disregard of the Courts order of visitation
4. Evidence that the child improved in the environment with the noncustodial parent
5. Evidence that one parent demonstrated a pattern of attempting to poison the child against the other parent
The applicable code section is O.C.G.A. 19-9-3(b):
In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child.
A military parent's absences caused by the performance of his or her deployments, or the potential for future deployments, shall not be the sole factor considered in supporting a claim of any change in material conditions or circumstances of either party or the child; provided, however, that the court may consider evidence of the effect of a deployment in assessing a claim of any change in material conditions or circumstances of either party or the child.
The Court has the discretion in these cases to examine the conditions and circumstances and ultimately decide how the interests of the children are affected.
The statute that governs expungment in Georgia is O.C.G.A. 35-3-37. I have summarized the major components of the statute below:
1. An individual who was:
(A) Arrested for an offense under the laws of this state but after the arrest is released by the arresting agency(police department, sheriff’s department or other law enforcement agency) without the offense being referred to the prosecuting attorney for prosecution; or
(B) After the offense is referred to the proper prosecuting attorney, and the prosecuting attorney dismisses the charges without seeking an indictment or filing an accusation
The individual may request the original agency(police department or sheriff’s department) in writing to expunge the records of such arrest, including any fingerprints or photographs of the individual taken in conjunction with such arrest, from the agency files.
2. Once the arresting agency receives the request, the agency shall provide a copy of the request to the proper prosecuting attorney.
RIGHT TO EXPUNGEMENT
An individual has the right to have his or her record of an arrest expunged, including any fingerprints or photographs of the individual taken in connection with the arrest, if the prosecuting attorney determines that the following criteria have been satisfied:
****Note: You must satisfy ALL of the requirements not just 1 or 2 ****
(A) The charge was dismissed under the conditions that was listed above in Paragraph 1;
(B) No other criminal charges are pending against the individual; AND
(C) The individual has not been previously convicted of the same or similar offense under the laws of this state, the United States, or any other state within the last five years, excluding any period of incarceration
What do I do if I meet the criteria:
Go to your police department or sheriff’s department to obtain the form or if you google” expungment in georgia” you can view a copy of the form that is used.
There are administrative fees that are charged to complete this process.
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