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.