Presenting a Child's Preference to the Court
Pursuant to
O.C.G.A. Section 19-9-3, the judge shall consider the desires of a minor child
who is 11 years old or older regarding custody. The law dictates how much
weight the judge should give to the child's wishes regarding custody depending
on the child's age. That is, an older child's wishes regarding custody will
carry more weight than that of a younger child. It is important to note that
the judge, not the child or the child's parents, ultimately decides the best
interest of the child---and which parent is awarded custody.
The issue of custody may arise in
different contexts, from a divorce matter to a modification of custody matter.
Oftentimes, determining the best way to present a child's desires regarding
custody to the judge can be tricky and challenging. Nonetheless, there are a
few options when it comes to presenting a child's preference to the judge.
Present the Child's Wishes through a Guardian ad Litem
A Guardian ad Litem is an
officer of the court appointed by the judge specifically to carry out certain
duties related to custody investigation and recommendations. Oftentimes, as a
part of their investigation, Guardians ad Litem will interview the
children at issue. If the child is at least 11 years old, the child's desires
regarding custody may come in through the Guardian ad Litem. As to in
which fashion the Guardian ad Litem may relay the child's wishes to the
judge depends on the situation and may sometimes be objectionable as hearsay. cf.
Rule 24.9.7 ("Role at Hearing and Trial") ("The [Guardian ad Litem] may
testify as to the foundation provided by witnesses and sources, and the results
of the [Guardian ad Litem]'s investigation, including a recommendation
as to what is in a child's best interest.")
Present the Child's Wishes through an Affidavit of Election
Just like the testimony of any other witnesses
at a temporary hearing (but not at a final trial), the minor child's affidavit
may be presented as evidence. See also Wilbanks v. Wilbanks, 238
Ga. 660, 662-663 ("Hearings on motions for temporary alimony, child support and
custody are heard by the judge alone…For these reasons, the rules of evidence
need not be strictly enforced in such hearings….The trial judge is allowed
broad discretion to determine the evidence he will consider in his efforts to
determine justly the preliminary and temporary relief requested by parties in
divorce proceedings and in the absence of fundamental unfairness or manifest
abuse of discretion, we will assume that the trial judge properly weighed all
the evidence in reaching his decision to order temporary relief.")
However, the
method of obtaining a child's affidavit may present some challenges. For
example, should a party's attorney meet with the child in person, have a
discussion with the child, and then draft the affidavit on behalf of the child?
Or should a party's attorney have another attorney who is not involved with the
case at all meet with the child and draft the affidavit on behalf of the child?
Should a party's attorney have the child handwrite the affidavit without any
prior discussion with the attorney? How would the general law that a Notary
Public must verify the affiant's identification via a photo identification
apply to situations where a minor child may not have a photo identification? There
may be no clear answers to these questions, and the law does not provide clear
instructions regarding affidavits of election either. cf. Domestic
Relations Standing Order of Cobb County Superior Court, 
8 ("If a Guardian Ad [sic] Litem has been appointed,
then counsel for the parties to the action, and anyone acting in concert with
counsel, shall not communicate with or meet with the parties' minor children
regarding the pending litigation without first securing the written consent of
the Guardian Ad [sic] Litem.").
Request Judge's Permission to Have the Child Meet with the Judge in the Chambers or Testify
Sometimes, and some judges are
completely fine with meeting with the children in the chambers to discuss the
children's desires regarding custody. Other judges may prefer the child's
testimony in open court (just like other witnesses) to meeting with the child
in the chambers. The mode of how a judge's meeting with the child in the
chambers may proceed also depends on the judge and the circumstances of the
case. Sometimes, the parties' attorneys may ask questions to the child in the
chambers. Other times, only the judge might ask questions to the child
regarding the child's desires.
Presenting a child's desires regarding
custody to the judge for consideration in a dispute related to custody may be
very challenging. Per the relevant statutory and case law, an older child's
desires may carry a lot of weight and affect the outcome of the custody issue.
Therefore, it may be wise to consult with an experienced Georgia custody lawyer
about how to present a minor child's preference regarding custody to the judge.