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In the State of Georgia, a child from the ages of eleven to thirteen years has the right to make their choice of parents in a custody case known to the court.  The child’s decision is not binding on the court, but the court must listen.  

A fourteen-year-old, or older, however, has much more power.  A child aged fourteen or older has the power to choose which parent they want to live with.  In fact, the custody election statute says that the custody election of a child aged fourteen years or older is “presumptive”.  Sounds simple enough, but the Court of Appeals of Georgia has confused things.

First, one thing remains straight-forward and clear and that is if you want to modify a child custody order in the State of Georgia, you need to show a material change of circumstances.  As a matter of law (and this remains settled law):

  • The custody election of a child aged fourteen years or older is a material change of circumstances, by itself, to get you into court.  It is all you need.  Nothing changes here.
  • The custody election of a child aged eleven to aged thirteen is not, by itself, a change in circumstances to get you in court.  You need another reason as well.  Nothing changes here.

So that is clear enough, but …

Court of Appeals of Georgia Decision

The problem starts with the language of the Georgia statute O.C.G.A. 19-9-3 that children over 14 years of age “have the right” to make a custody election and select which parent they desire to live with.  The child’s custody election is “presumptive,” according to the statute, unless the parent chosen is found to not be in the “best interest of the child.”  What precisely does that really mean?

Last year, I successfully argued in a case that it means the 14-year-old has the legal right to choose the parent they want to live with unless that parent is found to be unfit. Thus, the parent not chosen has the burden to prove the elected parent is unfit or they lose.  Otherwise, the right to choose the parent belongs entirely to the child age 14 years or older. The argument fits with prior legal decisions from third-party custody cases such as grandparents or other relatives. From a practical perspective, it is also what the statutory language seems to say.  The trial court thought so as well.  

However, in Belknap v. Belknap, the Court of Appeals of Georgia disagreed with my interpretation of this statute.  The Court ruled in a manner that indicated a 14-year old’s custody election should be ignored. 

The Language in the Custody Election Statute

I believe this decision is subject to be overturned the next time a similar case gets to the Georgia Supreme Court (The Supreme Court can overturn the Appellate Court).  The reason for this is that while the Appellate Court went out of its way to say the custody election statute must be given its plain and ordinary meaning, the Appellate Court removed all language indicating that the child’s right for their custody election is presumptive.  Writing this language out of the custody election statute is the opposite of giving the statute its plain and ordinary meaning.  Thus, this decision is ripe to be overturned.    

From a practical perspective, until this decision is overturned, this means children fourteen years or older have the power to make a child custody election, yes.  But that power is limited to getting you into court. Thereafter, the election is no longer “presumptive”.  An absurd result given the language of the statute, but one we have to live with for now. 

So how to approach it?  The child’s custody election gets you into court.  Once there, try the case as if the custody election was never given and don’t simply rely on the custody election.  Take nothing for granted.  Also, just in case, make a record for appeal.  Get the case to the Georgia Supreme Court and put the words “presumptive” back into the law.  

Fight to win custody at trial based upon the Belknap decision, but also make sure you set the groundwork for an appeal, just in case.

We are Georgia divorce and child custody attorneys.  This is all we have done since 1995.  We can help.  If you need help or have any questions, we would be happy to speak with you via email, text, or phone.  Check us out at www.shawlaw.com