By definition, a divorce splits a family. It turns minor children’s worlds upside down in multiple ways, including their living arrangements. Their single, two-parent household is replaced by separate parental residences between which they must shuttle. Permanent residential relocation, and even changes to their school districts caused by relocation, can result. In most respects, children of divorce must watch helplessly as someone else makes the decisions which will forever alter their lives. Yet the choice of parent with whom they will reside primarily may not be one of those areas.
In Georgia, the law allows every child 14 years or older the right to select the parent with whom he or she desires to live. That election is presumed to control unless a court determines that the child’s selection is not in his/her best interests.(1) Typically, a child initially indicates his/her election to a court by means of a signed affidavit. Whether a judge thereafter will interview or require testimony from the child to confirm the election varies by case.
The right of a child aged 14 years or older to select his/her parental residence does not end on divorce either. At any time after divorce, but at least two years from the date of the child’s prior election (if any), such a child may select the parent with whom he or she wishes to live. That election alone will constitute a material change of condition or circumstance justifying the filing of an action to modify a court’s prior custody determination.(2)
Georgia law also grants limited input regarding custody to a child who has reached the age of 11 but not 14 years. In a divorce or modification of custody proceeding, the judge must in part consider the desires of such a child in determining which parent shall have custody.(3) Problematically though, the governing statute does not identify the manner in which children of 11 to 13 years should convey their residential desires to courts. Nor has any published appellate decision clarified the matter. Affidavits, judicial interviews, reports from court-appointed guardians ad litem, and testimony from the children themselves, all are possible means of presenting children’s custodial desires. In the absence of statutory or binding appellate guidance, however, judges throughout the state continue to approach this subject in varying ways. And some judges inexplicably ignore their statutory obligation to consider the custodial desires of children between the ages of 11 and 13.
As for children below the age of 11, Georgia law unfortunately provides no say at all regarding the parent with whom they wish to live.
(1) O.C.G.A. § 19-9-3(a)(5). (2) O.C.G.A. § 19-9-3(a)(5). (3) O.C.G.A. § 19-9-3(a)(6).