March 1, 2019
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.