In Georgia custody cases, once children reach a certain age they have the right to elect (or select) which parent they desire to live with predominantly. Although not all-controlling, in certain situations a child’s election can carry great weight in a case’s outcome dealing with custody and visitation.
Fourteen (14) and Older
O.C.G.A. 19-9-3 states, in part, as follows: “[i]n all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.” O.C.G.A. 19-9-3(a)(5).
So what does this mean? Generally, this means that if a fourteen (14) year old (or older) child is involved in your custody action, their selection is going to decide the outcome of the case. Although the law allows for the Court to still ultimately decide the best interests of the minor child, absent strong evidence to sway the Court the child’s selection is going to control. Cases involving elections by children fourteen (14) and older are usually more straight forward given the significant presumption that the law creates. However, the case of children between, and including, the ages of eleven (11) and thirteen (13) is more complicated and factor oriented.
Eleven (11) But Not Fourteen (14)
Continuing on in the statute, O.C.G.A. 19-9-3 further states the following: “[i]n all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child’s desires shall not be controlling. The judge shall further have broad discretion as to how the child’s desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.” O.C.G.A. 19-9-3(a)(6).
Unlike the presumption that is created with an election by a child fourteen (14) or older, there is no such presumption for children eleven (11) to thirteen (13). However, the law still grants consideration to these elections by younger children. Perhaps most importantly, this statute gives the Court the authority to temporarily modify custody to allow the younger child’s election to be granted on a temporary basis. In the end the best interests of the child will control, but a temporary change in custody under this statute may be what is needed to show the Court that this change is in the child’s best interest.
Whether you find yourself dealing with a case involving child elections or whether you just have a few questions, be sure to call us today for a consultation.
Each individual’s case has unique facts and issues to consider. The information provided in this article is general information and is not a substitute for legal advice. If you have a need for legal advice, please give us a call for a consultation at the Sellers Law Firm: where clients become family.