“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 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)
Many parents wonder during their divorce process if the children have a say in who has custody over them. If your child is over 14 years old in the state of Georgia, they have the right to select the parent with whom he or she desires to have physical custody. Many individuals, however, misinterpret the law to mean that that the child’s election is absolute. The election made by the child is considered presumptive meaning that it is assumed correct unless it is proven that it is not in the child’s best interest. The two ways it could show that it is not in the child’s best interest is if the other parents prove it through evidence or the court finds that it is not in their best interest. For the election to be considered by the court, the child must sign an Election Affidavit under oath expressing their desires and have it submitted to the court.
The answer is not necessarily yes. The Georgia Supreme Court in Prater v. Wheeler found that a child 14 years and older has the right to choose not to visit with the non-custodial parent. However, this choice will be subject to judicial review. Another case, Worley v. Whiddon found that visitation to subject to judicial review to protect the child from influence by the other parent. It is advised that the custodial parent not use disparaging remarks and to encourage the child to visit the non-custodial parent during their visitation.
The Court will consider many factors during the custody case when determining what is in the best interest of the child. Some of those factors are:
If your child is between the ages of 11 but not yet 14 years old the judge considers their desires and educational needs when determining which parent shall have custody of the child. However, the desires of the child are not controlling, and the judge has broad discretion on how the child’s desires are weighed, including through the report of a guardian ad litem.