Under Georgia’s new custody law, a 14-year-old can choose who he or she wishes to live with and that decision is not dispositive, but is presumptive. This means the Court will likely uphold their choice unless there’s a very good reason as to why the child’s choice is not in the child’s best interests. We’ve written several articles on the topic.
Does the same hold true for visitation? Can a 14-year-old in the State of Georgia decide if and when they want to visit their other parent? The answer is yes and no. The child cannot unilaterally decide to not exercise visitation, but, with the approval of the court, they can make their choice known.
The Current Law on Visitation
Prater v. Wheeler, 322 S.E.2d 892, which remains good law in the State of Georgia, stands for the point that as a 14-year-old can choose his or her custodial parent, with the supervision of the court ensuring the child’s best interests, so to does such a child, with the supervision of the court, has the presumptive right to choose whether or not to visit with their other parent. This is the case as long as the court determines that it’s in the child’s best interests not to so visit.
In practice, if:
- The custodial parent has not been found to alienate or interfere with visitation
- The custodial parents is not a material cause of the child not wanting to visit the non-custodial parent with visitation rights
- The child’s motivation is pure
The court is likely to not hold a parent in contempt of court for not turning the child over to visitation if the older child refuses to go. However, this is not the end of the case as the Court is likely to want to intervene to try to figure out how to resolve the issue with the use of a Guardian ad Litem and reunification counseling. A parent has the legal right to have parenting time with their children, consistent with the child’s best interests, and it is in the child’s best interests to resolve resolvable issues. If the custodial parent is the problem, the judge has its contempt powers to use. But if the custodial parent is not the problem, then more nuanced solutions are necessary.
It’s important to note that this does not apply to children under the age of 14. For younger children, something stronger than a desire not to visit is necessary. For children 14 or older, where the law in Georgia gives them tremendous power in choosing who they want to live with as their primary parent, it also gives the older child similar power not to visit. They can even pick and choose when to visit as long as the court determines the child’s decision is “pure” and honest in motivation and not something more sinister on the part of the custodial parent.
If you have a child 14 or older who does not want to visit, and you as the primary parent have had nothing to do with the child’s aversion, the practical perspective is that you are not required to force the child to go see their mom or dad.
However, from a parenting perspective, you may want to be encouraging. Unless you see a real reason why your child should not visit, besides preference, it may help to encourage the child to visit or go counseling to determine if something is wrong. The decision is up to you, as the primary parent. You are not required to force the child to visit. And remember, the legal answer is different for younger children. It’s the current standard of the law in Georgia that an older child, as long as you have not been the primary influence, need not be forced to visit.
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com