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.
