Do Children Have a Say in Custody Rulings?

Whether a child can choose their own custody arrangement in Georgia depends often on their age and maturity level. Children under 10 years of age are generally presumed to be too young to make such a vital decision for themselves.

Children age 11 to 13

However, if the child is between 11 and 13 years old, the judge must take their desires and educational needs into consideration.  This is done by speaking to the child directly or appointing a guardian ad litem to ascertain the child’s wishes and best interests.  If custody was already decided in a previous action, the desire of a child between age 11 and 13 to change custodial parents does not in and of itself constitute a change of conditions sufficient to authorize a judge to change custody.  While the wishes of a child in this age range must be considered, a lawsuit to change custody of a child this age must be based on more than just the child’s wishes.

Children age 14 & Older

Georgia’s child custody law appears at first blush to give a child aged 14 or older the absolute right to decide which parent should receive primary custody.  In fact, the statute specifically states: “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.” However, the very next sentence of this statute states:  “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.”  This is a change from the prior version of the law, which honored a 14-year-old (or older) child’s selection unless the parent selected was found to be unfit. 

For several years after the statute was amended in 2008, it appeared anecdotally, that not much had changed.  Children age 14 and older seemed, for the most part, to continue having their wishes honored when choosing to live with a fit parent, even with the new standard in place.

However, two recently decided Georgia appellate cases spell out the significant power that a superior court judge retains to deny a 14-year-old (or older) child’s expressed wishes to change custodial parents.  In Belknap v. Belknap, decided Sept. 9, 2019, the Court of Appeals upheld a lower court ruling overruling a 14-year-old boy’s expressed desire to move from his mother’s home in Georgia to live with his father in Florida.  The lower court judge held it was in the child’s best interest to remain close to his older brother and grandparents; to continue attending the school where he was doing well; and to continue participating in the extra-curricular activities that he enjoyed.  The child’s expressed wishes were not honored.

In Grailer v. Jones, decided March 6, 2019, the Court of Appeals affirmed a lower court ruling that a child’s expressed desire to live with his mother was the product of a seven-year war the mother had waged against the father and was not in his best interest. The decision recounts the history of the parents’ multiple lawsuits over custody of and visitation with the child.

The lesson to be learned from these cases is that there is no black and white rule about the power of 14-year-old (and older) children to choose their custodial parent.  While the law still presumes that a 14-year-old child’s wishes should be honored, a parent must still demonstrate to a court that doing so is in the child’s best interests if the other parent does not agree with the child’s expressed wishes. 

Amending a Custody Order

Under Georgia child custody law, a 14-year-old child’s wish to change custodial parents is considered a material change of circumstance, which is a threshold requirement to amend a custody order. If your child is between ages 11 and 13, or is age 14 or older, and wishes to modify an existing arrangement, speak with a family law attorney who will help you choose the best path forward. 

For over 25 years, NMS Law Firm - Nina M. Svoren LLC has provided detailed guidance and compassionate legal service to families throughout northeast Georgia. With her knowledge of child custody law and dedication to clients, you can rely on Attorney Svoren and her staff to work diligently to achieve the results that are best for you and your children. Visit this website for more on child custody services or call (706) 282-4696 to schedule a consultation with a skilled advocate.