Georgia statute O.C.G.A §19-9-3 states that “in 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 interest of the child.” Therefore, in the state of Georgia the redline in which the court will give the most weight to the desires of the child is the age of 14. O.C.G.A §19-9-3 also gives consideration to the desires of the child who has reached the age of 11 but not 14 years. In that case, the court is required to consider the desires of the child but said child’s desires are not controlling. Regardless, whether the child has reached the age of 11 or 14, the analysis does not stop there.
The key determination the court will always have to make in any matter dealing with the welfare of the child, such as custody and visitation, is what is in the best interests of the child. To this end, there is no set formula, and every case will be decided based on each unique set of facts and circumstances. In Driver v Sene 327 Ga. App. 275 (2014) the father filed an appeal from a denial of his request for a change of custody based on his 15-year-old son’s election to live with him. In that case the court noted that the mother had been the primary custodian and was particularly situated to attend to the child’s developmental disorder and medicine regimen. After a guardian ad litem was assigned to the case, it was further noted that there was evidence that the child’s election was not sincere. In particular, the guardian testified that she believed that the letters submitted by the child were written with the assistance of the father. The court in that case denied the father’s petition.
It is also important to note that there are limitations imposed by O.C.G.A §19-9-3 on the number of elections a child of age can make within a given time frame. As stated in §19-9-3(a)(5), 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 custody of that child; provided, however, that such selection may only be made one within a period of two years from the date of the previous selection and the best interest of the child standard shall apply. In Elder v. Hedden, 811 S.E.2d 434 (2018) the court stated that the legislature’s intent in enacting §19-9-3(a)(5) was to ensure that the child’s selection be effective for two years from the date of his or her previous selection. In that case the court held that because the child originally chose to live with her father in December 2015, she could not change her mind for 2 years following the date – December 2017.
It is not uncommon for children to make elections due to the influence of a parent. Most children who have reached the age of election have the ability to articulate which parent they prefer to live with and the reasons for that election. Despite this fact, the court is not oblivious to the enormous pressure and stress this family dynamic can create. For this reason, it is critical to obtain the advice of an experienced family law and divorce attorney if you are pursuing a modification of a custody based on an election or disputing an election. The Faucette Law Firm, LLC specializes in all aspects of family and divorce law including, contested and uncontested divorce, child custody, child support, legitimation, spousal support, modifications and adoptions. We serve Fulton, DeKalb, Douglas, Paulding, Clayton, Fayette, Gwinnett, Henry, Carroll and Coweta. Contact our law firm today for a consultation.