CUSTODY ELECTION OF 14 YEAR OLD CHILD

CUSTODY ELECTION OF 14 YEAR OLD CHILD
© 2007 Karen S. Hindson, Hindson & Melton LLC

In late March 2007 the Georgia Court of Appeals upheld a lower Court which refused to honor a 14 year old child's election asking to live an equal amount of time with both parents.

The child's parents had been divorced for some time and the mother had physical custody. The 14 year old child signed an election seeking to spend an equal amount of time with both parents.

Georgia custody statute OCGA 19-9-3 provides that "in all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection shall be controlling unless the parent so selected is determined not to be a fit and proper person to have the custody of the child."

The trial court held that while the child had the right to choose which specific parent would have physical custody, the statute did not permit the child to make an election to establish joint physical custody. The 14 year old child's election was thus invalid. The Georgia Court of Appeals agreed and affirmed the trial court's decision.

In the 2007 legislative session, the Georgia legislature passed House Bill 369, which was signed by the Governor on May 29, 2007. The changes in the law will go into effect on January 1, 2008, and will apply to all child custody proceedings and modifications of custody filed on or after January 1, 2008. A summary of the changes in the custody law is posted on our Hindson & Melton LLC website in a separate article.

For purposes of this article, the relevant upcoming change in 2008 is that the 14 year old child's custody election will not be as powerful as it is today. The new provision states that "in all custody cases in which the child has reached the age of 14 years, 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 so selected is determined not to be in the best interests of the child." Thus, starting in 2008 the judge will have greater discretion to overrule the 14 year old child's custody election if the judge does not believe it to be in the child's best interest.

For more information or to discuss your specific situation, contact Karen Hindson of Hindson & Melton LLC at (770) 939-3936 or karen@hindsonmelton.com.