Child-custody disputes are usually painful for everyone, but perhaps most acutely for the children who are involved. Oftentimes, young sons and daughters have strong feelings about which parent they want to live with. But to what degree are Georgia courts obligated to take their wishes into account?
The ‘Best Interests of the Child’
As in most states, the controlling standard for making custody decisions in Georgia is first and foremost that they be made in the “best interests of the child.” The role of the judge “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).
That can be a difficult decision to make and judges rely on many factors—including the wishes of the child—in guiding them to their conclusions. But if that child is 14 or older, the child’s opinion will control with whom he or she lives except in very limited circumstances. Georgia is one of only a few states that give children such a powerful and controlling say in custody matters.
Age 11-13: Child’s Wishes Considered But Not Determinative
In all custody cases in which the child has reached the age of 11 but not 14 years, a judge shall consider the desires and educational needs of the child in determining which parent shall have custody. However, the child’s desires are not controlling, and the judge has broad discretion as to how the child’s desires are to be considered. As a practical matter, the child’s wishes are considered as one of the many enumerated factors that judges are to consider when determining what is in the best interests of the child.
Age 14 and Older: Child’s Preference is Controlling Unless Clearly Not in Their Best Interests
In all custody cases in which the child is 14 years-old or older, 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 selected is determined by the court not to be in the best interests of the child; for example, if there are serious concerns about the selected parent’s ability to provide a safe, healthy, and supportive environment for the child.
Protecting the Child From Undue Influence
Because child-custody disputes are frequently highly contentious, judges are well aware that one parent or the other may be trying to “use their kids” to get back at each other. They may try to influence what children might say when they tell the court what their preferences are. Judges are well aware of that possibility, of course, and may well closely scrutinize whether or not one parent or the other has exerted undue influence on the child’s decision. Similarly, judges may pay close attention to whether or not a parent has tried to turn the child against the other parent.
As part of their evaluation, a judge may decide to hear the testimony of the child in chambers outside the presence of either parent and may also hear the testimony of the child’s guardian ad litem, or individual appointed by the court to protect the child’s best interests.
Child-custody disputes can be very messy affairs with long-lasting psychological consequences for everyone involved. For that reason, parents who are involved them should strive to retain the kind of experienced legal counsel who know how to achieve the best results for all parties involved.
Alan Welch: Assistance and Guidance With Child Custody matters
As a compassionate and experienced Georgia divorce and family law attorney, I can help you navigate the tricky waters of child custody issues and work with you to ensure that your rights, as well as the rights of your children, are protected in any proceedings. Contact me today at (912) 265-9811 for a free, initial consultation to discuss your case.
This article has been prepared by J. Alan Welch Law for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.