Children do not have say in whether or not their parents will get divorced, even though divorce impacts children the heaviest. Their lives are forever changed, no matter how amicable the separation. Generally, the biggest disruption comes with dividing time between parents when determining custodial arrangements. Older children, usually age ten and up, tend to have strong feelings about where and who they will live with. If the parents are unable to agree where the child will reside primarily, will a Georgia judge consider the child’s preferences ? It depends.
The ‘Best Interests of the Child’
In Georgia, as elsewhere, custody determinations are made based on what is in the “best interests of the child.” A judge’s role “shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness…” O.C.G.A. 19-9-3(a)(2). In years past, a child over age 14 had the ultimate decision on where to live. Not anymore.
What makes Georgia unique compared to most other states is that it does give children 14 years of age or older a definitive role in the determination of custody. Even kids younger than 14 may get a non-binding say in their custody arrangements.
Age 14 and Older: Child’s Preference is Controlling Unless Clearly Not in Their Best Interests
In all Georgia custody cases where the child is 14 years-old or older, the child has the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody is presumptive unless the selected parent is determined not to be in the best interests of the child, as when there are concerns about substance abuse, domestic violence or the parent’s ability to provide a healthy and safe environment for the child. The Court., however, still has the final decision on where the child will reside.
Age 11-13: Judge Will Listen To – But Doesn’t Have to Follow – a Child’s Preference
Under Georgia law, in all custody cases where the child has reached the age of 11 but not 14 years, a judge will consider the desires and educational needs of the child in determining which parent shall have custody. But the child’s wishes are not controlling, and judges have fairly broad discretion as to how much weight to give those wishes – along with many other factors – in the overall evaluation of what is in the child’s best interests.
Of course, children can be subject to influence, and divorce often brings out the worst in parents. Some examples include: using undue influence to sway the children in their direction by badmouthing the other parent; allowing children to use and abuse alcohol or drugs in their home (otherwise known as being the “cool parent”); alienating the children and dragging them into the facts and circumstances that caused the separation; and allowing children to have boyfriends and girlfriends hang out unsupervised. Judges are aware of these situations and the judge is tasked with making every effort to ensure that the child’s expressed preferences are truly their own. This may involve the judge hearing testimony from the child outside the presence of either parent, as well as hearing testimony from any guardian ad litem or other individual appointed by the court to look out for the child’s best interests.
Choosing who to live with is not the same as choosing who to “visit” with
Many litigants and lawyers make the mistake of interchanging the term custody with visitation. Children do not have a right to choose their visitation schedule with the other parent. Judge’s typically are not going to honor a child having no contact or limited contact with a child absent egregious circumstances such as clear child abuse or other improper behavior.
Let a Woodstock Child Custody Lawyer at North Metro Litigators Help
Nothing is more important to you than your children. At North Metro Litigators, we never forget that. Our experienced and committed Woodstock child custody lawyers can help you through the divorce and modification processes so that your rights are protected and you and your children are positioned for a bright future. Call us today at (678) 944-0000 or contact us to arrange for your free initial consultation.