Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added. The provisions on whether a child fourteen years of age or older could continue to choose which parent he or she would live with was one of the most hotly debated portions of the bill. Prior articles on the subject can be found here and here.
Subsection (a)(5) of the new version of OCGA section 19-9-3 deals with the right of children 14 years or older to elect their custodial parent. As originally introduced, the bill would have abolished this right of election. However, the right re-emerged in a subsequent version, and in the bill as passed, some vestige of the right still exists, although it has been changed to some degree.
The law now provides that: “In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child´s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.”
Previously, the selection of the 14 year old or older child was controlling on the court absent a finding of unfitness of the selected parent. Now it is presumptive unless the selected parent is determined not to be in the best interests of the child. New to the statute is the provision that the selection alone is a basis for modification of custody but that the selection may not be made more often than once every two years. Considering there is only a four year window between the ages of 14 and 18, as a practical matter, this allows for the possibility of only two changes of custody based on the election.