Yes, at 14, but a Georgia judge can still override the choice if it is not in the child’s best interests.
At 14, the Child Selects
Under OCGA 19-9-3(a)(5), a child who “has reached the age of 14 years” has “the right to select the parent with whom he or she desires to live.” The selection “shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.”
Before 2008, the choice controlled unless the chosen parent was unfit. In Belknap v. Belknap, 351 Ga. App. 748 (2019), a 14-year-old wanted to move to Florida to live with his father, who argued that the court had to honor the election because he was fit. The trial court kept the boy with his mother, near his older brother and grandparents, at the school where he was doing well. The Court of Appeals affirmed, noting that “[n]either the term ‘fit’ nor ‘unfit’ appears anywhere in the text” of the statute.
Similarly, in Driver v. Sene, 327 Ga. App. 275 (2014), a court kept a 15-year-old with his mother despite his election, after the guardian ad litem testified that she thought the children’s letters were written with help from the father and his family. Both cases were requests to change an existing custody order, for which the statute adds rules of its own.
Ages 11 to 13
For a child who has reached 11 but not 14, OCGA 19-9-3(a)(6) requires the judge to “consider the desires and educational needs of the child,” but “the child’s desires shall not be controlling.” The judge may hear those desires “through the report of a guardian ad litem,” and may give the chosen parent temporary custody for a trial period of up to six months.
Our posts on a judge’s interview of a child and on children testifying explain how a child’s wishes reach the judge.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!