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This question is about the case of relocating from one U.S. state (Georgia) to another (Florida) for employment reasons in a situation where

  • The person relocating is a divorcee (a single parent mom).
  • The divorce case was initiated and has been handled in the court in Georgia. The settlement (back in 2005) was a split custody where the father has been obligated to pay a small amount of child support each month.

In this case the divorcee would prefer to relocate with the child; the child is currently 12 but it is not clear on whether the child wants to stay with the mom or with the dad (who remarried a couple of years ago).

The question stems from the split custody as that would make it difficult for the mom to live in south Florida.

The question is, is there a minimum age at which point the child can decide which parent he or she stays with?

  • Googling "Georgia age child can choose parent" brings up multiple non-government websites that say 14 years. Between 11 and 14, a judge will try to take into account the child's wishes. – mkennedy Jul 10 '16 at 20:36
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Note that I am not a lawyer. All law code here is from the official Georgia Law at LexisNexis.

In the case of Georgia, the law regarding a child’s election changed in 2008. Prior to 2008, a 14 year old child could choose with which parent to live, unless the judge determined that the chosen parent is unfit.

As proving that a parent is unfit was not always easy, the Georgia General Assembly in 2008 replaced the unfit parent standard with a Best Interests of the Child Standard. This new standard provides more flexibility to the judge in determining custody.

Some basic facts about how the law in relation to the child's selection of parent:

  • A parent that wishes to modify an existing custody arrangement must show that a material change in circumstances has occurred that warrants a new decision by the court.
  • If the child is 14 then the child's desire to select the parent may be considered as the "material change in circumstances".
  • However the court will only consider the child's choice if at least two years have passed since the last custody determination.

These aspects of the law can be seen in Georgia statute 19-9-3, article 5, which states:

(5) 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. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.

Note that the expression "The child's selection for purposes of custody shall be presumptive unless..." is the same as saying that "the child's selection shall be controlling (the decision) unless...".

As to children that are between 11 and 14 the law states as follows (Georgia statute 19-9-3, article 6)

(6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.

(Note that a "guardian ad litem" is the same as a "legal guardian".)

If the child is younger than 11, there is no expectation for the judge to consider the child’s preference when awarding custody.

Besides the desire of the child, the judge may consider following factors listed under Georgia statute 19-9-3, article 3:

(3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:

(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.

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Each state has its own criteria (tender age is usually under 4 -you can find case law that has general criteria of different ages) and so on -

When a child is 12 one can bring in an expert - interview the child then determine the level of the child's understanding - gets to a case by case basis and not much insight of a general nature of a question like this

In other words, depending on which direction you want to go -keep child in present status or change would be controlled on the expert's view of the child's understanding - the social dynamics, if the move would affect child positive or negative - plus, original decree - in other words, this is a question that rest in two areas 1. State's case law of general view of a 12 year old and 2. the particular facts of the case - so, given 12 years, each case varies you can't really get a proper answer - short of slight insight reading the state's case law- which most likely would rest a lot on the changing of status is good or bad - better environment and that kind of data - each case is different and it will sit via the old "based on the particular facts of this case..." determination

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