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Custody and the child’s choice

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A judge can sometimes consider the child’s choice in making a custody decision. In any contested custody case, the judge hearing and deciding the issue of custody has a duty “to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.”O.C.G.A. 19-9-3(a)(2). A factor that the judge will consider, as appropriate, is the child’s election as to which parent he would prefer to live.

In a custody case in which the child is 14 or older, “the child shall have the right to select the parent with whom he or she desires to live,” and “[t]he child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined [by the judge] not to be in the best interests of the child.” O.C.G.A. 19-9-3(a)(5).

In a contested custody case in which the child is between 11 and 14 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody,” and “shall have complete discretion in making this determination.” O.C.G.A. 19-9-3(a)(6). For this age group, “the child’s desires shall not be controlling.” The judge is to consider the child’s desires and has discretion in how to do so, but “the best interests of the child standard shall be controlling.” O.C.G.A. 19-9-3(a)(6).

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