Custodial Election by Child Age 14 or Older / Or Ages 11-14 in a Georgia Divorce

Although many lawyers question whether children in a divorcing or divorced family are unduly empowered, the law in Georgia is that a child 14 or older can elect his or her "physical custodial”, the parent with whom the child will live with more than 50% of the time. (The child is not empowered to elect who will be the legal custodian / final decision maker.) This election can be made in the initial divorce, or it can be the basis of a modification action. (Per O.C.G.A. section 19-9-3(a)(5), the election shall constitute a material change in circumstance triggering the right to file a modification).

To make the election, the child should come to the attorney’s office and sit with the attorney alone and execute an affidavit of election. The attorney should make sure the election is truly voluntarily and in the child's best interest. The child can be compelled to testify as to any manipulation or undue influence in the election, so the child has to be strong enough to stand by his or her decision in court in front of the other parent. Not every child can do this. Atlanta Custodial Election Attorney Russell Hippe has extensive knowledge regarding the execution of an affidavit of election.

O.G.G.A. Section 19-9-3(a)(5) provides:

“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."

This "presumptive best interest" standard, effective for all custody actions filed on or after January 1st, 2008, gives the trial court some latitude to refuse to honor a child's custodial election. See, Driver v. Sene, 327 Ga. App. 275, 277, 758 S.E.2d 613, 616 (2014) (in this modification action, GAL recommended that 15 year old, despite his affidavit of election, remain in the custody of his mother, and court agreed this was in the 15 year old’s best interest).

Prior to January, 2008, the judge's hands were usually tied. The old standard was the child's election was controlling absent a finding that the elected parent was unfit. Without such a finding, the election was required to be recognized, and the court had no discretion to act otherwise. See, Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003) for discussion of the old standard.

The election of the child to live with one parent more than 50% of the time does not mean the non-custodial parent is not entitled to visitation. Further, if the child has elected to live with one parent, this does not necessarily mean the child can simply refuse to visit with the non-custodial. The Supreme Court in Worley v. Whiddon, 261 Ga. 218 (1991) noted “The fact that a child of 14 can select his or her custodial parent, does not require the conclusion that such a child can be allowed to elect not to visit with the noncustodial parent.” Accordingly, a non-custodial parent has a right to seek judicial review of any such refusal to visit. The trial court retains supervisory power of the decision of the child and can order visitation over the child's wishes if it is in the child’s best interest.

In Worley, the Supreme Court re-affirmed it’s holding in Prater v. Wheeler, 253 Ga. 649, 322 S.E.2d 892 (1984), which noted:

“The fact that a child of 14 can select his or her custodial parent, does not require the conclusion that such a child can be allowed to elect to not visit with the noncustodial parent. Just as the selection of the custodial parent is subject to the judge's determination that the parent so selected is ‘a fit and proper person to have the custody of the child,’ so must the modification or alteration of visitation rights ... thereof be done by order of the court.”

However, if a child age 14 or older has made the independent decision (untainted by the custodial parent) that he or she does not wish to visit with the non-custodial parent (even if this decision is not in the child’s best interest), and there is no evidence that the custodial parent has wrongfully influenced this decision, ordinarily the court will not hold the custodial parent in contempt for refusing to respect the visitation schedule. See, Doritis v. Doritis, 294 Ga. 421 (2014).

A child age 11-14 may sign an affidavit of election of his or her desired physical custodian and may come to court to testify regarding. However, this election is not entitled to any presumption. Concerning the custody of a child age 11 to 14, the judge will have complete discretion and the best interest standard will be controlling. The execution of an affidavit of election by a child age 11 to 14 will not, in and of itself, constitute a material change in circumstance triggering the right to file a custody modification action.