Being a lawyer practicing in the area of family law, we deal quite a bit with the appointment of a Guardian Ad Litem. This term may be foreign to anyone facing a difficult custody battle, but it is important to know the role a guardian plays in our Court system. Guardians are appointed by the Court upon the request of either party to represent the best interest of the children. In a court of law, Guardian Ad Litem literally means, guardian for the suit. A guardian ad litem in Georgia is an attorney or non-attorney appointed by a judge to assist the Court in determining the circumstances of the matter.

In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitutes a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.

Jennifer and Robert were divorced in Iowa. She entered into a written agreement with Robert in which she consented to their two daughters living with their father in Georgia for approximately nine months. Having remarried,however, Jennifer headed for sunny Florida. Before the nine months had expired, she took the children from Robert’s house and took them to Florida. This led Robert to file his change of custody action in Georgia.

The divorce decree provided for shared physical custody of the children. When the father learned that his ex-wife planned to remarry and move to Cobb County, he filed a petition to modify custody, asking that the children reside with him during the school year and with the mother on alternate weekends.

Mom was the custodial parent and had a bad habit she could not break: smoking. She claimed she had quit, but admitted that on occasion she was unable to contain the urge. The court concluded that she had in fact not quit.