Preparing for Modification Suit Based on Child’s Age – Under Georgia law, a change of custody may be made if the noncustodial parent can show a material change of condition substantially affecting the interest and welfare of the child. Courts have held that a parent’s drug use, relocation, or subsequent marriage may be considered a material change which warrants a change in custody. Georgia courts have also unanimously permitted a parent to bring a modification suit based on the minor child having reached the age of fourteen years old. In fact, in Georgia, absent a showing of unfitness, a child’s selection of the parent with whom he or she desires to live with is controlling and the trial court is bound to honor this request. Thus, if your child is fourteen or older, the process for gaining custody is straightforward. First, a modification of custody suit must be filed. Second, the minor child must submit to the court an Affidavit of Election which sets forth his or her desire to live with the noncustodial parent.
Courts are more hesitant, however, to permit a minor child who is less than fourteen years of age from making such a decision. Since courts are not required to permit a child who is less than fourteen years of age from selecting which parent he or she wishes to live with, a number of strategies will increase your chances of obtaining a favorable modification result when younger children are involved.
First, unlike the situation where the child has reached the age of fourteen, the law specifies that the desire of a child less than fourteen years old to live with the noncustodial parent “shall not, in and of itself, constitute a material change of conditions or circumstances.” Thus, it is imperative that a litigant with a younger child assert facts that would amount to a material change in condition.
Second, the child must be prepared to articulate which parent he or she wishes to live with and be prepared to provide reasons possibly in open court for this desire. A situation where a child wants to live with her father because he lives in a better school district likely will have more merit than a case where a child wants to live with her father because he affords her a more relaxed curfew. In cases with younger children, judges are much more interested in the rationale behind the child’s desires.
To fully understand the situation, one must realize that this proceeding impacts the child tremendously. For this reason, many child advocates suggest that requiring a minor child to appear before a judge and both of his parents and eloquently express which parent he wishes to live with is too daunting a task to require a young person to endure. As such, courts are becoming increasingly receptive to permitting children to articulate their desires regarding custody in the judge’s chambers or by way of closed-circuit television.
Regardless of the venue in which the child must present his wishes, it is imperative that you discuss the situation with your child. This discussion should not in any way resemble “coaching” or an avenue to impress your desires on your minor child but instead must be a meeting in which you divulge the importance of speaking clearly, respectfully, and most importantly, candidly when giving his or her wishes before the judge.
Third, and of critical importance, is to ensure that other participants are in agreement with your position. Initially, if the Guardian ad Litem (GAL) appointed in your case is supportive of the child’s relocation, chances are much greater that a custodial change will be granted. Judges often defer to the GAL’s report and thus, it is of paramount value to have the GAL on your side. It is worthy to note that even where a child over the age of fourteen desires to live with you, this wish may not be honored in certain limited circumstances. Specifically, an extremely negative report from a GAL may form a basis for a judge to determine that you are not minimally fit to be custodial parent as is statutorily required. Under these circumstances, you cannot be awarded custody even where a minor child has signed an Affidavit of Election requesting such a transfer to custody.
Moreover, judges are inclined to keep sibling groups together if possible because this is generally seen as being in the children’s best interests. Thus, if you are attempting to gain custody of two children, ages 12 and 14 respectively, it is much more likely that a judge will entertain the wishes of the younger sibling if the older child has elected to change custodial parents.
In sum, although Georgia is unique in allowing a fourteen year old great discretion in electing which parent to live with, parents must also recognize that certain tactics can help tip the scales in favor of transferring custody of younger children as well.
Benjamin Porter is a Staff Attorney with the Atlanta office of Cordell & Cordell, P.C.