SB 404: Child Custody Proceedings; joint legal and physical custody as the default child custody arrangement; provide

Right now, Georgia law (O.C.G.A. § 19-9-3) says courts deciding child custody between parents have no automatic presumption favoring one parent or one type of custody, and joint custody is just one option a judge may consider among others. Senate Bill 404 changes that starting point. It removes the language saying there is no presumption in favor of any particular custody arrangement, and instead makes joint legal and physical custody, with equally shared parenting time, the default arrangement a judge must presume is in the child's best interests. That presumption can be overcome (rebutted) if a parent shows by a preponderance of the evidence, meaning it is more likely than not, that a different arrangement better serves the child. If a judge decides equal parenting time is not appropriate, the judge must still build a parenting schedule that fits the child's best interests. Judges keep the power to award sole custody, joint custody, joint legal custody, or joint physical custody depending on the case.

• Removes the current rule that there is no presumption for or against any particular custody arrangement in Georgia child custody cases.
• Establishes joint legal and physical custody, with equally shared parenting time, as the default arrangement courts must presume serves the child's best interests.
• Allows a parent to overcome that presumption by showing, through a preponderance of the evidence standard, that a different arrangement is better for the child.
• Requires a judge who deviates from equal parenting time to design a parenting time schedule consistent with the child's best interests.
• Preserves judges' authority to still order sole custody, joint custody, joint legal custody, or joint physical custody as the case requires.

Parents involved in divorce, separation, or other custody disputes in Georgia, along with the children whose custody is at issue. It also affects family court judges and family law attorneys who handle custody cases under O.C.G.A. § 19-9-3.

The change shifts the legal starting point in custody disputes: instead of an open-ended decision, judges would have to presume equal shared custody is best unless a parent proves otherwise. This could affect how quickly cases resolve and which parent bears the burden of arguing for a different arrangement.

• Section 1 amends O.C.G.A. § 19-9-3(a)(1) by striking the statement that there is no presumption favoring any particular custody form or parent.
• Section 1 replaces optional joint custody language with a mandatory default: joint legal and physical custody becomes the presumed arrangement.
• Section 1 sets the standard for overcoming this presumption as a preponderance of the evidence, meaning more likely than not.
• Section 1 requires courts deviating from equal parenting time to construct a custody schedule consistent with the child's best interests.
• Section 1 retains judicial discretion to award sole custody or various forms of joint custody as circumstances require.
• Section 2 repeals any conflicting laws.

1. 2026-01-16Senate Read and Referred (Senate)
2. 2026-01-15Senate Hopper (Senate)

• Ed Setzler (R, SD-037)Primary sponsor
• Randy Robertson (R, SD-029)
• John Albers (R, SD-056)
• Mike Hodges (R, SD-003)
• Billy Hickman (R, SD-004)
• Ben Watson (R, SD-001)
• Sonya Halpern (D, SD-039)

• child custody
• family law
• divorce
• parenting time
• joint custody