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Material Matters

by | Jan 6, 2021 | Custody

Kevin and Erica were divorced three ago. Kevin was awarded primary physical custody of their two boys, Spencer and Adam. The parties have coparented relatively well throughout the years and the boys are thriving in both homes. Erica, however, has recently been yearning to spend more time with the boys and want to petition the courts for primary custody. Although both of the boys, Spencer, now 13, and Adam, 12, love living with Kevin, desire to spend more than every other weekend with their mom. Erica has asked the boys to write an affidavit expressing their desires and they oblige. Kevin, content with the way things have been, is frustrated. “Things are going so well. Can she really just up and change that for no reason?”

The Georgia courts have well established a rule that outlines that to authorize a change in custody, it must be shown that there has been a change in conditions substantially affecting the interest and welfare of the children. Essentially, there must be a material change in circumstances. Courts analyze a change in custody on a two-step analysis: 1) a material change in circumstances; 2) best interests of the children.

Erica: But Spencer is old enough to make that decision. Isn’t that considered material? Besides he’ll be 14 in a month.

Pursuant to O.C.G.A. 19-9-3(5), a child who has reached 14 years of age has the right to select which parent he/she desires to live with and that decision must be presumptive unless the decision is not in the child’s best interests. When a child has reached the age of 11 but not yet 14, however, although the judge may consider the child’s desires, they are not controlling. And unfortunately for Erica in this particular situation, “the parental selection of a child who has reached the age of 11 but not 14 years shall not, 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.” If the child was 14, his decision would have been a material change, but at 13, his election does not have the same weight despite being almost 14. Most applicable here, in the words of Brandy, “almost doesn’t count.”

Erica: Well then I guess I’ll just wait a month and have Spencer sign another affidavit. No biggie.

Unfortunately, it is not that simple. Georgia has outlined in its statutes, that when a child makes a selection on which parent he/she wants to live with, “that selection may only be made once within a period of two years from the date of the previous selection.” The lawmakers have looked ahead and contemplated situations just as these. Preventing children from making multiple elections reduces the children’s involvement and the litigation.

The requirement that there must be a material change in circumstances prevents parties from petitioning the court every other year or whenever any disagreement arises. Essentially, “if ain’t broke, don’t fix it.”

-Denethris L. Barnes

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