2021 Georgia Code
Title 19 - Domestic Relations
Chapter 6 - Alimony and Child Support
Article 1 - General Provisions
§ 19-6-14. Child Support and Custody Pending Final Divorce; Liability to Third Persons for Necessaries

Pending a final judgment in an action for divorce, the judge presiding may grant as temporary child support a sum sufficient for the support of the children of the parties in accordance with Code Section 19-6-15. The judge may also hear and determine who shall be entitled to the care and custody of the children until the final judgment in the case. If a sum is awarded for the support of the children, the party who is required to pay the support shall not be liable to third persons for necessaries furnished to the children.

(Ga. L. 1870, p. 413, § 1; Code 1873, § 1741; Code 1882, § 1741; Civil Code 1895, § 2461; Civil Code 1910, § 2980; Code 1933, § 30-206; Ga. L. 1979, p. 466, § 11; Ga. L. 2017, p. 646, § 1-2/SB 137.)

The 2017 amendment, effective July 1, 2017, in the first sentence, substituted "temporary child support" for "alimony" near the middle, and added "in accordance with Code Section 19-6-15" immediately preceding the period at the end.

- For article, "Tax Aspects of Divorce and Separation and the Innocent Spouse Rules," see 3 Ga. St. U.L. Rev. 201 (1987). For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977).

Statute was constitutional and any modification or repeal must necessarily be made by the General Assembly of Georgia and not by the court. Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), cert. denied, 421 U.S. 929, 95 S. Ct. 1656, 44 L. Ed. 2d 87 (1975).

Former Code 1933, § 30-202 et seq. (see now O.C.G.A. §§ 19-6-3 and19-6-14) construed together, authorized applications for temporary alimony, when a suit for divorce was pending, and such a petition did not require a new process returnable to any other term of court. Luke v. Luke, 154 Ga. 800, 115 S.E. 666 (1923).

- There was nothing in the statute that required ruling that judge could not grant order nisi when the petition was presented to the judge and was duly filed on the following day. Sellers v. Sellers, 175 Ga. 47, 164 S.E. 769 (1932).

Superior courts of this state have subject matter jurisdiction over issues of child custody. Foltz v. Foltz, 238 Ga. 193, 232 S.E.2d 66 (1977).

- Judges of superior courts are empowered to determine who shall be entitled to care and custody of the minor children pending the litigation. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

- Under proper construction of order of the court at interlocutory hearing, awarding custody of children to wife, such disposition was temporary and not permanent, and judge at chambers, and in a county other than that in which the defendant resides, has jurisdiction in an action for divorce and custody of children, when proper notice has been given to the defendant, to award custody of the children pending the litigation. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

- Judge, in determining custody of children, is not bound by previous judgment in habeas corpus between the same parties. Zachry v. Zachry, 140 Ga. 479, 79 S.E. 115 (1913).

Discretion given trial judge in temporary award of custody pending divorce is broad as long as the case is in the bosom of the court and no permanent custody has been granted as in the final divorce. Therefore, the trial judge may, on the judge's own motion, change the custody of the children even in a hearing set to hear contempt. Mathews v. Mathews, 230 Ga. 779, 199 S.E.2d 179 (1973).

- Award of temporary alimony, attorney's fees, and custody of the children, although made on conflicting evidence, will not be disturbed if it does not appear that the discretion of the trial court was abused. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

- Trial judge can exercise power regarding custody only during period divorce is pending. When the case is terminated without a divorce being granted to either of the parties, the court cannot exercise this power. This power is one incident to the divorce proceeding. Brinson v. Jenkins, 207 Ga. 218, 60 S.E.2d 440 (1950).

- Temporary order regarding child support and custody binding parties pending decision is enforceable through contempt proceedings pending review of the divorce judgment in this court. Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263 (1977).

Until final decree is entered, judge may modify orders and transfer possession of children from the persons to whom custody was originally granted and commit them into the care of other and different parties. Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963).

Judgment denying temporary alimony is appealable and error may be assigned on temporary custody order included in the same order, without reference to the appealability of the custody order standing alone. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970).

- It is not necessary, at an interlocutory hearing in an action for divorce, to entitle the court to award the custody of children of the parties, that such children be brought personally into court. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

When judge places children in possession of third parties, such parties are not parties to divorce, but are mere temporary custodians of the children, agents of the court, appointed for the convenience of the judge to aid the judge in seeing that the children are adequately cared for until the judge's further order. The revocation of such an order by one subsequently entered, while the divorce case is still pending, cannot be made the subject of an appeal by the parties to whom the children were temporarily entrusted. Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963).

Final award of custody can ordinarily be made only after divorce has been granted. Brinson v. Jenkins, 207 Ga. 218, 60 S.E.2d 440 (1950).

- Settlement entered into between husband and wife whereby the husband was released from all future claims for temporary and permanent alimony, but making no provisions for a minor child, will not operate as a bar to an action for support of such minor child. Johnson v. Johnson, 131 Ga. 606, 62 S.E. 1044 (1908); Norrell v. Norrell, 138 Ga. 64, 74 S.E. 757 (1912).

Rules of evidence need not be strictly enforced in temporary alimony, child support, and custody hearings. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977).

Cited in Ray v. Ray, 109 Ga. 465, 34 S.E. 562 (1899); Waycaster v. Waycaster, 150 Ga. 75, 102 S.E. 353 (1920); Dalton v. Dalton, 170 Ga. 502, 153 S.E. 22 (1930); Rozetta v. Banks, 183 Ga. 701, 189 S.E. 513 (1937); Adams v. Adams, 191 Ga. 537, 13 S.E.2d 173 (1941); Loggins v. Loggins, 191 Ga. 779, 14 S.E.2d 91 (1941); Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943); Fortson v. Fortson, 200 Ga. 116, 35 S.E.2d 896 (1945); Hodges v. Hodges, 77 Ga. App. 86, 47 S.E.2d 823 (1948); Murray v. Murray, 206 Ga. 702, 58 S.E.2d 420 (1950); Burton v. Furcron, 207 Ga. 637, 63 S.E.2d 650 (1951); Murphey v. Murphey, 215 Ga. 19, 108 S.E.2d 872 (1959); Bartlett v. Bartlett, 99 Ga. App. 770, 109 S.E.2d 821 (1959); Hume v. Smith, 101 Ga. App. 452, 114 S.E.2d 151 (1960); Kennison v. Lee, 217 Ga. 155, 121 S.E.2d 821 (1961); Hewlett v. Hewlett, 220 Ga. 656, 140 S.E.2d 898 (1965); Minchew v. Minchew, 222 Ga. 593, 151 S.E.2d 144 (1966); Foster v. Foster, 230 Ga. 658, 198 S.E.2d 881 (1973); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977); Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263 (1977); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981); Baca v. Baca, 256 Ga. App. 514, 568 S.E.2d 746 (2002); Long v. Long, 303 Ga. App. 215, 692 S.E.2d 811 (2010); Segars v. State, 309 Ga. App. 732, 710 S.E.2d 916 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 587, 609, 610, 613, 924.

- 27C C.J.S., Divorce, § 1149.

- Validity of agreement by parent to surrender custody of child in consideration of promise to leave property to child, 15 A.L.R. 223.

Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.

Jurisdiction of court in divorce suit to award custody of child as affected by orders in, or pendency of, proceedings in habeas corpus for custody of child, 110 A.L.R. 745.

Right of wife in divorce suit to recover for expenses incurred in support of child during period of separation prior to commencement of suit, 113 A.L.R. 1103.

Education as element in allowance for benefit of child in decree of divorce or separation, 133 A.L.R. 902; 56 A.L.R.2d 1207.

Induction into military service of one to whom custody of children has been awarded in divorce suit, 151 A.L.R. 1498; 155 A.L.R. 1477; 156 A.L.R. 1476; 157 A.L.R. 1472; 158 A.L.R. 1489; 158 A.L.R. 1490.

Extraterritorial effect of provision in decree of divorce as to custody of child, 160 A.L.R. 400.

Jurisdiction of trial or appellate court in respect of custody of children pending appeal from order or decree in divorce suit, 163 A.L.R. 1319.

Jurisdiction to award custody of child having legal domicile in another state, 4 A.L.R.2d 7.

Nonresidence as affecting one's right to custody of child, 15 A.L.R.2d 432.

Father's duty under divorce or separation decree to support child as affected by latter's induction into military service, 20 A.L.R.2d 1414.

Marriage of minor child as terminating support provisions in divorce or similar decree, 58 A.L.R.2d 355.

"Split," "divided," or "alternate" custody of children, 92 A.L.R.2d 695.

Court's establishment of trust to secure alimony or child support in divorce proceedings, 3 A.L.R.3d 1170.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.

Award of custody of child to parent against whom divorce is decreed, 23 A.L.R.3d 6.

Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.

Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R.3d 366.

Spouse's acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom, 29 A.L.R.3d 1184.

Propriety of decree in proceeding between divorced parents to determine mother's duty to pay support for children in custody of father, 98 A.L.R.3d 1146.

Parent's physical disability or handicap as factor in custody award or proceedings, 3 A.L.R.4th 1044.

Race as factor in custody award or proceedings, 10 A.L.R.4th 796.

Necessity of requiring presence in court of both parties in proceedings relating to custody or visitation of children, 15 A.L.R.4th 864.

Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.

Excessiveness or adequacy of money awarded as child support, 27 A.L.R.4th 864.

Court-authorized permanent or temporary removal of child by parent to foreign country, 30 A.L.R.4th 548.

Right to credit on child support payments for social security of other government dependency payments made for benefit of child, 34 A.L.R.5th 447.

Appealability of interlocutory or pendente lite order for temporary child custody, 82 A.L.R.5th 389.

Right to credit on child support arrearages for time parties resided together after separation or divorce, 104 A.L.R.5th 605.

Right to credit against child support arrearages for time child spent in custody of noncustodial parent, other than for visitation or under court order, without custodial parent's approval, 108 A.L.R.5th 359.