The Child’s Choice: How Age of Election Works in Georgia

The Child’s Choice: How Age of Election Works in Georgia

September 20, 2011

Battling over custody of a child can be one of the most grueling, stressful, and all together emotionally draining experiences one can endure as part of a legal action. A custody battle can be a very long and complicated process that involves multiple court hearings and the services of various experts such as guardian ad litems and mediators. Today’s article focuses on one aspect of custody: the impact of the child’s preference regarding which parent he or she lives with.

Many parents believe that a child always has the freedom to choose, but that is not true. Georgia law is a little more complicated regarding this issue. It is almost impossible to discuss the impact of a child’s choice without first outlining the general rules regarding custody in Georgia. According to Georgia Statute 19-9-3 (a) (2), it is the duty of the judge to determine what is in the best interests of the child and to award custody accordingly. This is commonly referred to as the “Best Interests of the Child Standard”. Georgia statute 19-9-3 (a) (3) lists seventeen factors a judge can consider in determining the child’s best interests. These factors are also listed in the custody section of the Sutton Law Office’s Website. However, it is important to remember that this is a non-exclusive list and the judge has the freedom to consider almost anything he or she deems relevant. In short, the judge has very broad discretion in this matter.

While a child’s choice, often referred to as a child’s election, is not one of the seventeen factors, it does impact custody. The degree that it impacts custody depends on the age of the child. Georgia statutes 19-9-3 (a) 5 and 19-9-3 (a) 6 specifically address this issue. According to 19-9-3 (a) 5, a child that is at least fourteen years old can select with whom to live. The child’s choice is considered presumptive, meaning the judge will award custody based on the child’s choice with one caveat. The child’s choice must still comport to the Best Interests of the Child Standard. If a fourteen year old child wishes to live with dad, the judge will grant dad custody unless, after considering all relevant factors, the judge determines that giving custody to dad is not in the child’s best interests.

This is a slight modification of the longstanding Georgia rule regarding a child’s election. Prior to 2008, a fourteen year old child could choose with whom to live unless the judge determined that the chosen parent is unfit. Proving that a parent is unfit is often very difficult absent extreme circumstances such as domestic violence or drug abuse by a parent. The result was that a fourteen year old child almost always chose with whom to live even if it was not the best choice. In 2008, the Georgia General Assembly modified the law replacing the unfit parent standard with the Best Interests of the Child Standard. The new standard allows a judge to have more flexibility in determining custody. Proving that a choice is not in the best interests of a child is not nearly as difficult as proving a parent is unfit. However, this discussion should not be construed as a dismissal of the importance a fourteen year old child’s choice. When dealing with two similarly situated parents possessing equal parenting ability, a fourteen year old child will, in most situations, have the power to choose with whom to live.

Georgia law 19-9-3 (a) 6 addresses the preferences of children who are younger than fourteen. A child who is at least eleven years old but not fourteen can express his or her desire and the judge will consider the child’s desire as a factor in determining custody. However, unlike the rule governing a fourteen year old child’s choice, the desires are not presumptive. The judge retains full discretion to award custody how he or she sees fit pursuant to the Best Interests of the Child Standard. It simply adds the child preference as another factor for the judge to consider. If the child is younger than eleven years old, the judge will not consider the child’s preference.

For parents wishing to change or modify an existing custody arrangement based on a child’s preference, the age of the child is again an important factor. The side requesting to modify custody must show that a material change in circumstances has occurred warranting new intervention by the court. If the child is at least fourteen years old and desires to live with the other parent, the court will consider the child’s desire as a material change in circumstances and will re-evaluate custody. However, the child’s choice can only be made once within two years of the last custody determination. If a child younger than fourteen desires to live with the other parent, the court will not consider the child’s desire as a material change in circumstances and will not re-open custody.

The above is a brief overview of custody in Georgia and how a child’s election works. If you are dealing with these issues or otherwise engaged in a custody dispute, it is vital that you consult an attorney that can advise you regarding your specific situation.

Adam M. Sutton, Esq.

How to Negotiate Better in Three Steps Part Three

How to Negotiate Better in Three Steps Part Three

August 4, 2011

This is the conclusion of our three part series of articles on negotiating better.  To any new readers, you may wish to begin by reading part one and part two. Links to the previous two parts are located in the Articles page of the website.  To the returning readers, thank you for reading and I hope you found our negotiation series helpful and interesting.

Step three in our steps to negotiating better is collaborative brainstorming. We begin by looking at what is meant by the term brainstorming.  Brainstorming is the process where the participants in the negotiation actively try to develop possible resolutions.  Brainstorming is directly tied to step two – information gathering.  It is essentially the process where you use the information you gathered and attempt to craft a solution from that information.

Brainstorming is sometimes used in connection with creative thinking or the cliché “thinking outside of the box”.  While every attempt at brainstorming does not have to include unusual or outlandish ideas, remaining open to different ideas can move many negotiations towards resolution, especially if those different ideas grew out of extensive information gathering. Slightly changing the previously used automobile example, consider this scenario.  You wish to purchase a car from a neighbor.  The neighbor offers to sale the care for $7,500 but you can only afford $5,000.  There are two common options available to the buyer: You can haggle over the price or you can purchase the car from someone else.  However, it may be beneficial to consider other more unusual options.  Perhaps through information gathering you discover that his daughter is interested in learning how to play the piano and perhaps your husband teaches piano in his spare time.  Now you and the seller can consider a new option: he sells the car for $5,000 and your husband gives $2,500 worth of piano lessons to the seller’s daughter.  The seller receives the value he desires and the buyer receives the price she can afford.  Of course not every negotiation can work out this perfectly, but until you engage in information gathering and brainstorming you never know.

 The negotiation participants can attempt to develop solutions individually, but the best use of brainstorming involves a non-isolationist approach.  To fully utilize brainstorming, the participants should work together and attempt to create an atmosphere conductive to generating ideas.  This collaborative approach may be counter-intuitive to many people more familiar with the traditional approach to negotiation.  Traditionally, negotiation is considered a combative affair where each side uses the tools in his or her arsenal to beat the other side into submission while conceding as little as possible.  However, the most common result of this approach is that both participants are mentally and emotionally bloody from the fight and neither is satisfied with the end result.  Unfortunately, many people feel fighting is their only option.  They say: “Adam, I agree that working together would be better, but it will not work with my situation”.  In some cases that may be correct, but taking a collaborative approach regardless of the attitude of the other participant and using the proper brainstorming tools during the negotiation can often manage even the hottest conflicts.

It is important to personally commit to cooperative brainstorming regardless of the attitude of the other negotiation participant.  It takes two to fight. If you refuse to participate in the fight even when the other side acts in an inflammatory manner, you essentially pour water on his or her fire.  Therefore, it is helpful to have a good poker face and to not react when prodded.  Even if the other side began highly combative, your calm demeanor will often calm them down. 

Other brainstorming tactics commonly used in mediation will help as well.  Many mediators will facilitate cooperative brainstorming by building on commonalities between the participants and emphasize any negotiation success.  By focusing on what the parties do agree on, you build a sense of successful progression and foster future cooperation.  Many mediators will also facilitate brainstorming by outright asking each side to brainstorm together. However, many negotiation participants are reluctant to freely express ideas because they are concerned the other side will latch on to any idea listed.  Therefore, it is very important to stress that no one is committing to these ideas.  Once all of the ideas are discussed and evaluated, the parties may then decide what they are willing to commit to.  This process works effectively with or without a mediator.  The negotiation only needs one participant willing to act as facilitator and focus on building cooperation.

This concludes our three part series on how to negotiate better. The steps discussed here are extrapolations of Interest Based Negotiation, a process developed by the Harvard School of Law Negotiation Project.  If you would like to learn more about IBN, I encourage you to read Getting to Yes by Fisher, Ury, and Patton and you are of course welcome to contact me at The Sutton law Office with any questions, concerns, or feedback.

How to Negotiate Better in Three Steps Part Two

How to Negotiate Better in Three Steps Part Two

June 6, 2011

This is part two of a three part series of articles on negotiating better.  To our new readers, while you are free to begin reading part two now if you so wish, it may be advisable to begin with part one where the series was introduced and we examined step one - developing a backup plan. A link to part one is located at the bottom of this page.  

In the last article we examined step one in our efforts to be a better negotiator – developing a backup plan.  Today we examine the necessity and importance of step two – gathering information.  Gathering information serves two important purposes for negotiation.  First, it helps you gain a better knowledge of the subject matter of the negotiation and the factors that may impact it.  Being a well informed participant gives you the knowledge and the confidence necessary to better advocate for your desired goals.  This is the type of information gathering most people think of and it is often equated with conducting research. Returning to the automobile purchasing example from the previous article, researching the particular make and model of the automobile educates you on the benefits and drawbacks of the particular type of car and allows you to make an informed decision regarding its value.  With this information, not only can you develop the amount you will pay for the car, but you also have the tools to defend and explain your amount.  

 The second way gathering information helps you during negotiations is that information gathering is the only way to determine the other side’s interests.  Interests are not the same as positions.  A position refers to the negotiating stance one side makes.  Interests are the reasons behind the stance.  For example: “the car is for sale for $7,500, take it or leave it” is a position.  The interests could be “I need to earn enough to pay off this car and make a $2,500 down payment on another car I wish to purchase”.  It is preferable to deal in interests rather than positions because interests are typically broader and may be satisfied in a variety of different ways through the application of creative thinking and brainstorming.  In contrast, positions usually allow for only one of two responses, either the other side accepts the position or it does not accept the position.

This type of interests searching through information gathering is an active process that a person utilizes during the negotiation itself.  It can begin through small talk with the other side and can cover a variety of topics big and small. Use open ended questions and be an active listener – acknowledging what is said and asking follow up questions.  Without making a conscious effort to gain as much information as possible not only is the participant essentially negotiating blind, but he or she is also cut off from several ideas for possible solutions.  Looking back to the purchasing a car from a neighbor example, the buyer may not be able to afford the $7,500 price, but if the buyer learns the reasons why the price was set at $7,500 he or she may be able to look at other options that meet the seller interests.  Perhaps the buyer could pay $2,500 up front and take over payments.  The buyer would not know unless he or she made a conscious effort to gather as much information as possible.     

Here is a personal example from years ago that shows the importance of interests versus positions and the value of information gathering.  When I was an undergraduate student in Macon Georgia I interned for the local Office of Child Support Services.  When my manager learned I had a strong interest in conflict resolution she assigned me to the front desk where, as she humorously quipped, I will experience plenty of conflict.  She was correct.  The office has a policy that a custodial parent client cannot see the agent assigned to his or her case without an appointment and I experienced several people who adamantly wanted to see their agent without an appointment.  These interactions were negotiations.  The client attempted to explain to me why she needed to see her agent and I attempted to explain why she could not see her agent.  As an intern, I was not in a position to make or change policy.  Therefore the positions were clear, but were the interests clear?  That could only be determined through information gathering.  I spoke with the client, asked a lot of questions and engaged in active listening.  What I learned was that while speaking with an agent was her position, having someone at the office listen to her and treat her concerns with importance was her true interests.  These interests I could meet by spending time with her, taking notes, and assuring her that the information would be passed to her agent. In the end, while her position was not met, the client left the office feeling positive about her experience there because her interests were met.  The situation became a negotiation exercise as part of customer service and the positive result was only possible because the time was taken to gather information from the client so as to understand the client’s true interests and move past the positions. 

 Adam M Sutton, Esq.

The Sutton Law Office

Article: How to Negotiate Better in Three Steps Part One

Yes I know I have not posted updates like I had hoped.  One a week apparently did not work out so well.  So to make up for it I will post all three parts of my article "How to Negotiate Better in Three Steps" today.

How to Negotiate Better in Three Steps Part One

May 6, 2011

When many people think of negotiation, they picture big business mergers, world summits, and lawsuits, but the truth is that negotiation is part of everyone’s lives in some form or fashion.  If a person ever bought a car or sought a promotion, he or she probably utilized negotiation.  Looking at an even more basic level, if a person ever attempted to resolve a dispute with a significant other, he or she probably used negotiation.  To paraphrase Roger Fisher, one of the authors of the outstanding book Getting to Yes, considering how much we all negotiate, every one of us should be experts in the matter.  Unfortunately, this is not the case.  Too often, people approach negotiation as an exercise in fighting rather than problem solving, which leads to anger, frustration, and either failure or only partial success.  In an article I recently wrote for a local newspaper I briefly described Interest Based Negotiations (IBN) and its use in politics and everyday life.  Developed by Fisher, Ury, and Patton and explained in detail in their book Getting to Yes, IBN attempts to move people away from combative positional arguments and move them towards cooperative problem solving based on each side’s interests. 

In the following three part series, I attempt to summarize their theories into three basic steps that anyone can use in almost any situation.  However, this series is not intended to supplant or replace Getting to Yes or the hard work of its authors.   If you are interested in learning more about IBN I highly advise you read Getting to Yes and its follow up books.  Moving on to today’s subject, the following is step one of three of how to negotiate better in everyday situations.

Step one: have a backup plan.  Not all negotiations are successful and in the event that negotiations do not lead to the desired results, it is very important to develop an alternative way to reach your goals.  Getting to Yes calls this plan the Best Alternative to a Negotiated Agreement (BATNA).  The purpose of this backup plan is to be the best alternative in the event that the negotiation fails.  For example, if you are negotiating the purchase of a car from a neighbor, your BATNA could be to buy a similar car from someone else.  A BATNA should be developed in detail, not just a vague idea.  Rather than thinking “my backup plan is to buy the car somewhere else” explore the backup plan.  Talk to the other sellers, gather prices, and make a firm commitment to the actions you will take if current negotiations fail. 

Beyond the obvious benefit of such a plan, there is a major underlying benefit of developing a BATNA: confidence.  Having a fully developed BATNA gives a person greater confidence and thus greater negotiating power because that person understands that he or she is not bound and tied to that negotiation.  Compare these two scenarios: You are negotiating the purchase of a car from a neighbor and you have no other option but to get that particular car from that particular neighbor.  It does not matter how unreasonable the neighbor acts or how much he insists you pay for the car, because you do not have a backup plan you are bound and tied to the results of that negotiation and will act accordingly.  You are at the mercy of the power of the seller.  In short, you have little, if any, negotiating power.  In scenario two, you found alternative places to purchase the car before negotiating with the neighbor.  You know that in the event that the negotiation is not meeting your needs, you can walk away and still have a way to meet your goals.  With the knowledge that the negotiation truly is a voluntary process, you can negotiate with confidence that you control your part in the process.

Developing a BATNA can also help in interpersonal negotiations.  For example, you wish to attend a friend’s baseball game this Saturday but your significant other adamantly wants you to accompany him or her to a wedding the same day and the two of you are “negotiating” your weekend plans.  A possible BATNA could be to go to the game regardless of your significant other’s feelings, or to attend the wedding and try to catch the next baseball game.  Both of these backup plans have drawbacks, but remember they are the best alternatives, not the perfect alternatives. Just like the purchasing a car example, the BATNA serves two purposes, it provides for an alternative in the event negotiations fail and reinforces your confidence and power in the negotiations.     

It is easy to overlook the necessity of a BATNA, especially for informal negotiations such as in the above example.  However, the importance of a properly utilized BATNA cannot be overstressed.  A BATNA is not a hammer used to threaten the other side, but instead a frame that provides support, confidence, and power though that confidence so that you can better work towards obtaining your desired results.

Parts two and three coming soon.

Adam M. Sutton, Esq.