The Georgia statute permitting custody election 14 year old has been in place in its current form since 2008. Click here for a summary of the 2008 law.

A Georgia 14 year old has the right to select the parent with whom he or she desires to live.  O.C.G.A. § 19-9-3(a)(5).  Most frequently, this is accomplished by the child signing a notarized statement called a custody election affidavit which records the child’s wishes.  Usually, the child does not have to testify in Court about the custody election.  The parents and the judge see the child’s affidavit recording the custody election 14 year old and the child’s wishes are honored in the court proceeding.  The custody election 14 year old could be part of a divorce, or as a subsequent modification of custody once the child turns 14 if the child wants to change his or her residence to live with the other parent.

What happens if the parent who stands to lose custody as a result of the election believes strongly that it is not in the child’s best interest to honor the child’s wishes?   The parent can challenge the custody election 14 year old during the divorce or modification action.   The Georgia statute says that 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.  So, the parent who wants to challenge the child’s election must overcome the presumption with evidence about what is in the best interest of the child in order to win.

What kind of facts would be relevant to challenge a custody election 14 year old?  The factors for the judge to consider in determining the best interest of the child are listed in the child custody law summary.  Read through those factors, and think logically about the ones that would be most important in a judge’s decision to override the 14 year old child’s election.  Put yourself in the judge’s shoes.  Judges are conscious of the fact that teenagers who are forced to live where they don’t want to live can be difficult.  Sometimes they act out in significant ways or even run away to express frustration.  As a result, the issues that a judge relies on to override a child’s custody election are usually important issues.

Examples of factors that I think might be important to develop with evidence, as applicable to your case:

  • the capacity or disposition of the selected parent to provide the child with  food, clothing, medical care, day-to-day needs
  • the home environment of the selected parent – especially as it relates to the safety of the child
  • the mental and physical health of the selected parent
  • the selected parent’s employment schedule and limitations, if any, of the parent to care for the child
  • the selected parent’s past performance as a parent
  • the selected parent’s history of family violence or sexual, mental, or physical child abuse
  • the selected parent’s substance abuse

If you compare my list just above to the list of factors for the judge to consider in the child custody law summary (which list is taken from the Georgia statute), you will notice a difference.  The judge, in determining what is in a child’s best interest, is generally looking at and comparing both parents’ health, past performance as a parent, bonding with the child, etc.  But my list above focuses more on the parent that the child has elected to live with in the case of a custody election 14 year old.  Why?  Because with a 14 year old, the presumption is that the child is able to make an election not inconsistent with his or her best interest.  If we are going to challenge that election, we need to concentrate on factors that would warrant overriding the child’s election.  The judge isn’t really just comparing the two parents to see which the judge thinks would be the preferable parent and environment.

Sometimes, the child can make a custody election 14 year old for reasons that are not good reasons.  The child can be made to feel guilty by the non-custodial parent, or manipulated or browbeat into making a custody election that is not in the child’s best interest.  Occasionally a child may feel some obligation to make an election to emotionally “take care of” a parent who has played on the child’s sympathies.  In cases such as these, one possible approach to challenging the custody election of 14 year old is to request a guardian ad litem or court appointed custody evaluator.  While this can be expensive, it offers the advantage of exploring the issue of the child’s best interest outside of the courtroom.  The judge could receive a report from the guardian ad litem or custody evaluator instead of placing the child in  the middle of a courtroom fight over the child’s wishes.  In order to justify the appointment of a guardian ad litem in a case involving a 14 year old, you should be able to explain your concerns in a compelling way in your request for a guardian ad litem.  This is not just another custody determination about what is in the child’s best interest.  This is overriding a statutory presumption in favor of the child’s election.

One thing that you must consider when challenging a custody election of 14 year old is the impact of your challenge on your relationship with your child.  Typically, a child is angry at a parent who tries to prevent the child from living with the other parent if that is truly the child’s wish.  For you to challenge your 14 year old’s custody election, your reasons should be serious and substantial.

© Karen S. Hindson, Hindson & Melton LLC – April 19, 2013