By Leslie O’Neal
For those who follow the Kardashian clan even casually, it does not come as a shock to hear that Kris and Bruce Jenner have finally announced their separation. Their marital woes were often fodder for their reality TV show, “Keeping Up With the Kardashians.” While the Jenner’s will likely have much to sort out in terms of dividing the assets and interests they’ve accumulated over their 20 year marriage, it will be interesting to see how they handle custody of their two independent and outspoken teenage daughters, Kendall and Kylie.
It is a common misconception in Georgia that once a minor child reaches a certain age, he/she has the freedom to choose which parent he/she wants to live with. However, it is not quite that simple. In Georgia, although a minor that has reached the age of 14 years old has the right to convey his or her desires about which parent he or she wants to live with, the Court still has the ultimate authority to determine that the parent selected is not in the best interests of the child. Minors who are 11 years of age but not yet 14 also have the option of conveying their parental preference to the Court, though their desires are given even less weight and the Judge has the discretion to disregard the child’s preference entirely. In other words, the child’s preference is not binding on the Court, and the Court is free to determine that the child’s preference is not appropriate based on the circumstances of the case.
Sometimes a child’s preference is given in the context of a modification of custody lawsuit. This occurs when the parties and the child already have a visitation Order in place, and the child wishes to modify the status quo and move to the other parent’s residence. If the child is between 11 and 14, the child’s desire to move to the other parent’s home does not automatically allow for a modification of custody lawsuit without some other change having occurred. However, if the child is 14 years or older and desires to move to the other parent’s home, that desire is enough in and of itself to trigger a modification of custody lawsuit.
Even after a child’s formal preference is given, the parties are still required to follow the previous Court Order until the Court makes a new custody determination unless the parties can reach an agreement to the contrary. Just last month, the Georgia Supreme Court affirmed a trial court’s decision to incarcerate a Mother for keeping her 15-year-old daughter away from her ex-husband. Carlson v. Carlson, 2013 WL 5303253 (2013). The teenage daughter had signed an Affidavit of Election stating a clear desire to live with her mother. Id. However, the Court rightfully noted that neither party, nor the child, has the authority to modify a visitation Order that has been issued by the Court without the agreement of the other party or the Court’s approval. Id. Therefore, even in a situation like the Jenners’, with two teenage daughters who are driving and independent, the parties can still be expected to enforce a visitation schedule that has been Ordered by a Court.