- by Mary Montgomery
The short answer is yes, but with caveats. The child can choose not to visit, but that decision is still subject to judicial review.
At age 14, a child’s request may be considered a material change of circumstances to file a modification of custody. In Georgia, once a child turns 14 he or she may choose which parent will be their primary custodial parent, however, there are instances when a judge can overrule the child’s election. Also, pursuant to Georgia law, children between the ages of 11-14, may also express their desire and courts put substantial weight. Note, however, a child’s choice between the ages of 11-14 of which parent they want to live with is not controlling.
What legal applies, then, if a/the 14-year-old who chooses to live with one parent doesn’t want to visit with the other parent? Here are credible Georgia cases supporting similar, and unique, scenarios:
The Georgia Supreme Court in Prater v. Wheeler, 253 GA 649 (1984) found that a child aged 14 and older has the right to choose not to visit the non-custodial parent. However, the Court found that the desire of the child not to visit with the other parent remains subject to review by the Court and determination of what is in the child’s best interest must be made in any other modification or alteration of visitation rights. After the Prater decision, the legislature added to the statute “nothing in code section shall be interpreted to deny the noncustodial parent the right to reasonable visitation determined by the court”.
In Worley v. Whiddon, 200 Ga. App. app 521 (1991), following the statute addition, the Court of Appeals found that the additional language in the statute supported their holding in Prater and did not, in fact, change it. The Court held that visitation is a part of custody and is still subject to judicial review to protect the child from coercion by the other parent. The trial court, however, is not precluded from considering the wishes of the child.
A mother was not held in contempt in Doritis v. Doritis, 294 Ga 421 (2014), because the settlement agreement between the parties, which had become the Order of the Court, allowed visitation as the father and child agreed. Therefore, the visitation election of the child had been subject to judicial review.
In September 2016, in Dallow v. Dallow, 2016 WL 4729551, the Supreme Court of Georgia issued an order finding that the mother was not in contempt when the child did not want to visit the father, because she did not actually interfere or withhold visitation.
When your child does not want to visit with the other parent, you need to ensure that you are not directly violating the Court order, granting custody to the other parent by withholding visitation. It is important to not disparage the other parent in front of the child, but encourage the child to visit with the other parent, and help the child sort through their feelings as to why they do not want to visit with the other parent. Often, a child psychologist may be able to help you and your child find the best way to help sort out the circumstances surrounding the emotional upheaval of the child.
It is recommended to hire an experienced attorney to file a modification action, seeking judicial approval of the child’s election not to visit, and make the child’s request part of the custodial order. Proving to the court you are not, in fact, withholding visitation and are not therefore in willful contempt is a technical and difficult process, that requires experience in custodial rights.
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