Legal Grounds for Changing Child Custody
The Civil Code of Georgia builds the whole regulation of relations between parents and children on the principle of equality. Under article 1197, parents have equal rights and duties toward their children: neither of them, by virtue of being the mother or the father, holds a privileged position in deciding where the child lives, how the child is raised, educated or represented. At the same time, the law places the child's own interest at the centre of the system and states directly that a child has the right to live and grow up in a family. Any modification of custody has to be assessed against these two benchmarks — parental equality and the family environment. When divorce, separate residence or other circumstances change the structure of a household, the question of with whom the minor child will live no longer remains a purely internal family matter: it is governed directly by the Civil Code and, where the parents disagree, by the court.
Residence of a Minor Child upon Divorce
Article 1201 of the Civil Code regulates the place of residence of a minor child when the parents divorce or live separately for another reason. The primary mechanism is the parents' agreement: it is up to the mother and the father to determine which of them the child will live with. Only where no agreement is reached does the dispute fall to be decided by the court, taking into account the interests of the child. In such a dispute the parent's right to act as the child's representative in relation to the litigation is suspended, because both parties to the dispute are the parents themselves and neither may speak in the child's name against the other. In order to protect the child's interests independently of the parents' positions, the guardianship and care organ appoints a representative for the child, who represents the child's interests during the examination of the case in court. The court therefore reaches its decision not only on the basis of the parents' allegations, but also with careful attention to a procedurally independent voice speaking for the child.
Rights of Divorced or Separately Living Parents
Divorce or separate residence does not diminish the legal position of either parent. Under article 1202, parents equally have all rights and duties toward their children irrespective of the fact that they are divorced or live separately. The provision of the greatest practical weight is the prohibition addressed to the parent with whom the child lives: that parent may not restrict the rights and duties of the other parent. In everyday terms, physical residence with the child does not translate into a monopoly over decisions concerning the child's upbringing, education, health or daily life. Any genuine restriction of the other parent's rights is possible only through a lawful decision of the court — not through unilateral conduct, refusal of contact, or letters and instructions addressed to schools, doctors or third parties.
Judicial Restriction of Parental Rights and Duties
Under article 1205 of the Civil Code, the restriction of a parent's rights and duties is possible only by a decision of the court, unless the Code provides otherwise. The court may restrict one or several rights and duties of a parent independently of the parent's other rights and duties: the restriction may target a specific sphere — for example, particular forms of contact with the child — without extending to the remaining part of the parent's legal status. Guardianship or care is established with respect to a child both of whose parents have had a parental right or duty restricted in accordance with the Code. Even in this situation the law preserves, as far as possible, the parent's obligation to maintain the child: while a parental right is restricted, the parent remains bound by the alimony obligations provided for by the Code. Restriction of parental rights therefore never operates as a release from the duty to support the child materially, and the child's maintenance claims survive the restriction intact.
Frequently Asked Questions
Who decides with whom a minor child lives after a divorce?
If the parents live separately, the question depends first of all on their agreement. Where there is disagreement, the dispute is decided by the court taking into account the interests of the child, and during the examination the child's interests are represented by a representative appointed by the guardianship and care organ.
May the parent with whom the child lives restrict the other parent's rights?
No. Divorced or separately living parents have equal rights and duties toward their children, and the parent with whom the child lives may not restrict the rights and duties of the other parent.
How is the restriction of parental rights carried out?
A parent's rights and duties may be restricted only by a decision of the court, unless the Civil Code provides otherwise. The court may restrict one or several rights independently of the others, while guardianship or care is established with respect to a child both of whose parents have had a parental right or duty restricted.
Does the maintenance obligation survive the restriction of parental rights?
Yes. As far as possible, the parent retains the obligation to maintain the child while a parental right is restricted, and must continue to perform the alimony obligations provided for by the Civil Code.
How We Help on Legal.ge
If the question of the child's residence, contact with the child or the restriction of parental rights has arisen in your family, the team of Legal.ge will analyse your situation through the prism of the Civil Code requirements, help you structure a workable agreement between the parents or build a reasoned position for court, and ensure that the child's interests are properly presented at every stage of the dispute. Contact us and we will plan the practical next steps together.