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How does a court in a Georgia divorce, modification or legitimation claim determine what is in the best interests of the child ?

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Samuel (Sam) Siemon - Family Law - Super Lawyers

Answered by: Samuel (Sam) Siemon

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The first thing to note is that the best interests of the child, like almost any issue in a divorce case, can be determined by the divorcing spouses on their own in the settlement negotiations. In most cases, there is no need for the case to go before a judge if the spouses can come to an agreement on their own. A settlement agreement is a preferred method of making these determinations, as it allows the couples to make these decisions on their own, without relinquishing their parental decision-making to a judge. 

When a case like this does come before a judge, there are numerous factors the judge will consider. The statutory standards are enumerated specifically in § 15-11-26. 

If the parties cannot agree on the custody arrangements on their own, the judge will look at issues that include:

  • The conduct of the parties: In many cases, one of the parties will illustrate patterns of behavior that make him or her less suitable as a parent than the other party. Issues like criminal backgrounds and patterns of chemical abuse can result in one parent being deemed unfit and the other parent getting custody rights.
  • Stability of the home life: In addition to the issues of unfitness illustrated above, there are other patterns that can destabilize the home life offered by one of the parents. Irregular working hours and living in a dangerous neighborhood, for example, can result in an unstable home life that would not work in the child’s best interest.
  • The bond between the child and each of the parents: In many cases, a child bonds more with one parent than the other. In these cases, the courts will generally try to keep the primary custody with that parent more often to foster that bond. 

These are just a few of the factors a judge will consider in a custody dispute. 

Does The Child Have A Choice Of Which Parent To Live With? 

This is a complicated matter, depending on the circumstances, the most important being the child’s age. A young child will almost never get before a judge to decide which parent to live with. 

With younger children, it is common for a judge to appoint a guardian ad litem. The guardian ad litem is an agent of the court who will meet with the child, the parents, school teachers, coaches, etc.; look into each parent’s home environment and schedules; and explore all other relevant details. Based on that information, the guardian ad litem will make a recommendation to the judge regarding which parent should have primary custody of the child. 

When children start getting older, their preferences will be given more weight. At 11 years old or older, the child’s opinion will carry some weight. The judge will take it under advisement but will not necessarily go with that opinion. 

At 14 years old, the child’s preferences begin to carry much more weight in the judge’s determination. At 14, it becomes almost a presumption that the child’s preferences are in his or her best interests. The child’s preferences used to be a presumption, in fact, overcome only by showing that the other parent is unfit. In recent years, the law has changed; even though the child’s preferences will carry significant weight, there still needs to be a finding by the judge that these preferences are, in fact, in the child’s best interests. 

Again, it cannot be emphasized enough how important it is to make these determinations in negotiation before taking the case before the judge whenever possible. Your parental rights and choices are extremely personal and important, so you do not want these decisions to made by a judge rather than making them yourself. 

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