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These articles DO NOT constitute legal advice and should not be construed as such. If an article is relevant to your particular legal situation you should understand that it is merely intended to provide a very general preview of matters that would be discussed in detail during a face-to-face consultation.   The law is constantly changing and some of the information in these articles might be obsolete.  Please also recognize that seemingly insignificant details often have a big effect on the advice that we give our clients concerning a particular legal issue.

March 1, 2019

At what age can my child select his or her custodial parent?

By Lance Owen | Posted in Child Custody & Visitation, Family Law | No comments

Under Georgia law a court must make a determination as to what arrangement will serve a child’s best interest when making an initial custody decision. When modifying a prior Custody Order the court must first determine that there has been a “material change of conditions or circumstances” since the previous Custody Order was entered. If the court finds that there has in fact been a material change of conditions or circumstances then the court may then determine if a different arrangement would better serve the child’s best interests.

A child’s age has a substantial affect on custody determinations. A child that has reached the age of 14 has the right to select his or her custodial parent. A child’s custodial parent is the parent with whom the child resides for the majority of the time. The right of the child to select his or her custodial parent is not automatic once the child has reached the age of 14 because a court case must be filed to obtain an Order from a judge modifying the prior Custody Order. The court must determine that the child being placed in the selected parent’s physical custody will serve the best interests of the child, bu the law requires the judge to presume that the child’s election is in his or her best interest.

Contrary to popular assumption a child does not automatically have the right to determine whether or not he or she will visit with the other parent once the child reaches the age of 14. The court must consider the wishes of the child and determine whether or not requiring visitation will serve the child’s best interests. The court may or may not require visitation.

A provision under Georgia law that is often overlooked by many lawyers provides that a child may only elect his custodial parent once every two years. So, if a child elects to reside with one parent then in theory he or she must remain in that parent’s custody for a period of two years before he or she can make a different election. There are ways that a competent attorney can navigate around this restriction and file a file a new modification case within the two year period.

When a child has reached the age of 11, but has not yet attained the age of 14, the Court is required to consider the wishes of the child with regard to his or her custodial parent. The child’s wishes, however, shall not be considered determinative until the child reaches the age of 14. Furthermore, the law provides that any case seeking a modification of physical custody cannot be based solely on the wishes of a child that is younger than 14 and that there must also be a material change of conditions or circumstances to accompany the child’s election.

February 3, 2017

Grandparent Visitation Rights in Georgia

By Lance Owen | Posted in Child Custody & Visitation | No comments

In order to understand the current state of the law with regard to “grandparent visitation” in Georgia (O.C.G.A. §19-7-3) one must first understand how custody and visitation is determined by the courts when the custodial dispute is between parents.   Further, one must recognize that Georgia law provides a means by which certain third-party relatives (including grandparents) can actually get permanent custody of a child over the objection of one or both parents.

March 27, 2013

Can my child select his or her custodial parent?

By Lance Owen | Posted in Child Custody & Visitation, Divorce | No comments

A child who has reached the age of 14 has the right to select the parent with whom he or she will live. The selection, however, must be found by the Court to be in the child’s “best interest”. There is a presumption that the child’s selection is in his or her best interest. This means that the party opposing the selection will have the burden of convincing the Court that the selection is not in the child’s best interests. In my experience the opposing party has an uphill battle.

A case seeking to modify physical custody may be filed solely on the ground that the child is over the age of 14 and wants live with the other parent. When custody is modified based solely on the child’s selection there cannot be another custody action filed for a period of two years following the selection. This means that the child cannot change his or her mind and return to the other parent’s custody within two years of his or her previous selection unless there is some additional evidence to support a change of custody. For this reason the child should be certain of his or her selection.

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