Child’s Right to “Elect” or Choose the Parent With Whom S/he Wants to Live (and/or Visit)

April 12, 2017

Like some other states, Georgia law allows a child involved in a custody dispute to “elect” or choose the parent with whom she or he wants to live.  Seems simple, but it’s actually more nuanced.  For one thing, it depends on the age of the child. Children between 11 and 14 may  choose the parent with whom she or he wishes to live, but her or his choice will not be given much weight.  The language of the relevant law puts it this way:  “[T]he 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 “complete discretion” and “not controlling” language can essentially negate the child’s choice.  That said, there is an interesting provision in the law in cases involving children between 11 and 14 that allows a judge to issue a temporary custody order  to the chosen parent for a trial period of no more than 6 months. Older children – those 14 and over –  have the right to elect or choose the parent with whom they wish to live and the statute says that the selection “shall be presumptive” unless the chosen parent is determined not to be in the best interests of the child.  Even for these children, the judge must consider what custody arrangement is in their best interests.  Some judges and Judicial Officers openly express distaste for this law and appear to treat a teenager’s election with a good deal of skepticism.

Children 14 and older may also choose not to visit, have counseling, and, by extension, have any contact at all with the noncustodial parent, but case law requires that a judge “supervise” this choice and issue a court order to that effect. This is due in part to the fact that the noncustodial parent has visitation rights previously established in a divorce decree or subsequent modification of custody order.  The cases that discuss this “visitation election” are mindful of the possibility that the custodial parent might be encouraging or even pressuring the child not to visit with the noncustodial parent out of spite or coercion.  To properly exercise supervision over a visitation election, the judge should interview the child to determine her or his wishes, note the child’s age, the circumstances of the divorce or parental breakup, and whether there is any evidence that the custodial parent is interfering with visitation or the child’s relationship with the other parent and issue an appropriate order.  The best interests of the child standard will apply.