The Georgia Supreme Court, in the case of Worley v. Whiddon, 261 Ga. 218, confirmed that since visitation is part of custody, the wishes of a 14 year old regarding visitation are important. But the trial court still has authority to set visitation rights based on the best interests of the child, including not only the child’s wishes but also other factors.

Court has supervisory power over child’s decision

The court essentially has supervisory power over a 14 year old’s decision not to visit the noncustodial parent. This supervisory power protects both the child and the noncustodial parent from coercion by the custodial parent.

As a practical matter, if you have a child over age 14 who wants not to visit the noncustodial parent, you should file a petition to modify visitation if you support the child’s decision. Otherwise, you could be subject to a contempt action regarding visitation.

If you are a noncustodial parent whose child does not want to visit you, your course of action may depend on whether you believe the child is making an independent judgment or acting under coercive influence of the custodial parent. Counseling involving the child and the noncustodial parent can be of assistance in navigating conflict that interferes with positive visitation experiences. Optimally, the parties and the child together decide on terms of a modification that takes the child’s wishes into consideration and continues contact with the noncustodial parent.

Parents who rigidly enforce their schedule and other “rights” without consideration of their child’s wishes or feelings are making a mistake. As a child nears adulthood, each parent must begin to navigate their relationship with their child independently of the other parent and the court’s enforcement powers.

Hindson and Melton LLC can assist you in evaluating your best course of action. We represent both mothers and fathers.

© Karen S. Hindson, Hindson & Melton LLC February  4, 2014

ALSO SEE:

• CHILD SUPPORT MODIFICATION AND CONTEMPT OF COURT
• CUSTODY ELECTION 14 YEAR OLD
• CUSTODY ELECTION 14 YEAR OLD – PARENTING PLANS

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

Custody election of a 14 year old
In divorce cases or later modification actions, it is common for a child age 14 or older to make a “custody election” stating which parent the child wants to have physical custody (where the child wants to live). Prior to 2008, the 14 year old child’s custody election was controlling unless the judge found the selected parent to not be a fit and proper custodial parent.   Starting in 2008, the law changed to give the judge greater discretion to overrule the 14 year old child’s custody election if the judge did not believe it to be in the child’s best interest.   Since 2008, and currently, the law 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. 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, if a custodial parent whose 14 year old has elected to go live with the other parent strongly believes that it is not in the child’s best interest to reside primarily with the other parent,  the custodial parent can present evidence to the judge of the reasons why, and request that the judge overrule the child’s election.   Since 2008, the judge need not find the other parent “unfit” in order to overrule the child’s election – but the reasons to overrule the child’s election must be good reasons and the case presented as what is in the “best interest of the child”.   To discuss your individual situation contact Karen Hindson of Hindson & Melton LLC.

Parenting Plan
In all cases (2008 or later) in which the custody of any child is at issue, a parenting plan will be required. The final decree in any action involving custody (including modifications) will incorporate a permanent parenting plan.

The statute identifies elements generally required of a parenting plan. Included are items such as:

• close and continuing parent-child relationship and continuity in the child’s life is in the child’s best interest
• a child’s needs change and grow as the child matures and the parents should consider this to minimize future modifications.
• the parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent.
• both parents will have access to all of the child’s records and information, including education, health, extracurricular, and religious

The statute also identifies elements normally included in a parenting plan, unless the parties agree otherwise or the judge orders otherwise:

• where the child will spend each day of the year
• how holidays, birthdays, vacations, school breaks, and other special occasions will be spent including time of day
• transportation arrangements including how and where the child will be exchanged and how transportation costs will be paid
• whether supervision is needed, and if so the particulars
• allocation of decision-making authority with regard to child’s education, health, extracurricular activities, and religious upbringing. If the parties agree the matters should be jointly decided, how to resolve a situation in which the parents disagree.
• what, if any, limitations exist while one parent has physical custody in terms of the other parent contacting the child and the other parent’s right to access information regarding the child

Binding Arbitration is Allowed
The 2008 statute says “it shall be expressly permissible for the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan. The parents may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter’s decisions shall be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter’s award would not be in the best interests of the child.”

Factors for the judge to consider in determining the best interest of the child
Any relevant factor, including:

• the love, affection, bonding, and emotional ties existing between each parent and the child
• 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
• 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
• each parent’s knowledge and the familiarity of the child and the child’s needs
• 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
• the home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors
• 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
• 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
• the mental and physical health of each parent
• each parent’s involvement, or lack thereof, in the child’s education, social and extracurricular activities
• each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child
• the home, school, and community record and history of the child, as well as any health or educational special needs of the child
• each parent’s past performance and relative abilities for future performance of parenting responsibilities
• the willingnessand 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
• any recommendation by a court appointed custody evaluator or guardian ad litem
• any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent
• any evidence of substance abuse by either parent
• in cases involving family violence, there are additional factors

For more information about the new law or to discuss your specific child custody situation, contact  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.

© 2007 Karen S. Hindson, Hindson & Melton LLC