Georgia law permits a child aged 14 years or older to “select the parent with whom he or she desires to live.”(1) Nonetheless, an action to modify custody of the child making such a custodial election will not automatically succeed. This article addresses the available means to defeat the custodial election of a child aged 14 years or older.

Firstly, a court can refuse to enforce an involuntary custodial election. If evidence demonstrates that the petitioning parent, for example, coerced, pressured, or bribed the child to make the selection, the trial court can reject the child’s election.(2)

Secondly, the statute authorizing custodial elections by children aged 14 years or older explicitly states that 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.”(3) It remains somewhat unclear, however, whether a child’s presumptive selection shifts to the responding parent the burden of proving that a change of custody to the petitioning parent would not be in the best interests of the child. While the Court of Appeals in one instance rejected a petitioning father’s contention that the statutory presumption from a child’s custodial election must be treated as true and sufficient until and unless rebutted by other evidence, the Court in that case focused on the father’s unwarranted assertion that the trial court had erred in failing to make findings of fact regarding his parental fitness. At the same time, the Court stated that a trial court can look to any evidence presented in determining whether a petition to modify custody is in the child’s best interests.(4) Typically though, an evidentiary presumption places the burden on the responding party to rebut the presumption with sufficient evidence, including in custody matters.(5)

Irrespective of where the ultimate burden of proof falls, the responding parent in a modification action should introduce evidence of all relevant facts demonstrating that the child’s custodial election does not serve his/her best interests. The relevant factors which a trial court can consider in determining the best interests of a child in a custody case specifically include, but are not limited to(6):

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent's knowledge and familiarity of the child and the child's needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

(G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;

(I) The mental and physical health of each parent;

(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;

(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.

Those factors apply in custody modification actions, including actions based on parental selections by 14-year-old children or older.(7)

(1) O.C.G.A. § 19-9-3(a)(5).

(2) See Grailer v. Jones, A18A2101 (2) (Ga. Ct. App., March 6, 2019); and Driver v. Sene, 327 Ga.App. 275, 758 S.E.2d 613, 616-617(1) (2014). See also Prater v. Wheeler, 253 Ga. 649, 650-651, 322 S.E.2d 892 (1984). See generally Green v. State, 691 S.E.2d 283, 285-286 (Ga. Ct. App., 2010); and Holmes v. Achor Center, Inc., 249 Ga.App. 184, 192(2)(c), 547 S.E.2d 332 (2001).

(3) O.C.G.A. § 19-9-3(a)(5).

(4) Driver, supra, 758 S.E.2d at 616-617(1).

(5) See, e.g., Strickland v. Strickland, 298 Ga. 630, 631(1), 783 S.E.2d 606 (2016).

(6) O.C.G.A. §19-9-3(a)(3).

(7) Driver, supra, 758 S.E.2d at 617(2).

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