When and How Are Children’s Wishes Considered in Custody Cases?

In Georgia as in other states, judges deciding child custody matters must order parenting arrangements that are in the best interests of the children involved. This determination is based on numerous factors. Among them, Georgia law recognizes the importance of considering a child’s own preferences in appropriate cases. Depending on the child’s age and other circumstances, those preferences can tip the scale, leading to primary custody being granted to one parent or the other.

A Georgia statute provides for different degrees of weight to be given to the preference of children based on their age group, as follows:

• Age 14 and older: presumptive custodial election — When a child in this age group expresses a preference for one parent over the other, their choice is presumptively accepted by the court. This means granting primary custody to the chosen parent unless there is clear evidence that it is not in the child’s best interests. However, even if the child’s chosen parent is granted custody, the other parent will have visitation rights and the parents and the child are expected to adhere to the court-ordered visitation schedule.
• Ages 11 to 14: discretionary consideration — The court will consider the preferences of children in this age group, but their choices are not controlling. Their wishes are just one factor among many, with the judge exercising discretion about how much weight to give them. This depends in part on the child’s perceived level of maturity and intelligence, and the extent to which the child can articulate a reasonable basis for their preference.
• Under age 11: sole focus on best interests — Children younger than 11 are not considered mature enough to form preferences about custody that should influence court rulings. In these cases, the court looks to all other possible indicators of what is in the child’s best interests. These include the child’s emotional and physical well-being, each parent’s ability to provide a stable environment and the willingness of each parent to promote a positive relationship between the child and the other parent.

For a child’s preferences to be considered in a child custody determination, the judge must ensure that the child’s choice is made freely and without undue influence or manipulation from either parent. The judge may interview the child privately to ensure their choice is voluntary and genuine. Instead of having the child testify in court about their preference, the judge may appoint a guardian ad litem or a custody evaluator to gather information and opinions from the child and to make a report.

The Law Office of S. Mark Mitchell, LLC in Newnan, Georgia represents parents in child custody matters and on other family law issues. Please call 470-344-8550 or contact me online to schedule a free initial consultation.