In custody cases, parents are faced with a big decision regarding which parent a child will live with (assuming the parents can agree). When the parents cannot agree and a judge needs to make the decision, he or she relies on what each parent presents in court and makes a decision based on the best interests of the child. Sometimes either the child or one of the parents wants the child’s opinion to be considered by the judge. If a child is old enough, the child can make an election as to which parent he or she wants to live with. This way the judge can consider the child’s opinion directly and not just what each parent thinks is best.

14-Year Old Elections

In Georgia, a child 14 years or older has the right to select their physical custodian – the parent he or she will live with more than 50% of the time. This is a presumptive election, meaning the election will control unless the other parent can show it is not in the child’s best interests to live with the selected parent. Typically, the court follows the child’s election absent serious circumstances that indicate following the election would be detrimental to the child. The judge may follow the child’s election even if the other parent thinks the child has been coerced, though this is certainly an issue that can be addressed at trial.

11-14 Year Old Elections

If the child is between the ages of 11 and 14, under Georgia law, he or she can express an opinion on which parent he or she wants to live with. However, the child’s election at this age does not carry as much weight as an older child’s election; his or her opinion is one of many factors the judge will take into account when awarding primary physical custody.

Impact of an Election

A child’s election, particularly if the child is over 14, can impact the custody of younger children as the court generally prefers to keep siblings together. However, split custody, where one parent is the primary custodian of one child and the other parent is the primary custodian of another child is a possibility.

A child’s election does not mean that the non-custodial parent is not entitled to parenting time. Even if a child says he or she does not want to see one parent, the non-custodial parent will typically still get some sort of parenting time, which could be minimal, traditional every other weekend, or even close to half the time. The court may take the child’s preferences into account when determining parenting time, particularly for children who are close to 18. While a child cannot select his or her legal custodian or final decision maker, the final decision maker will usually be the parent who has primary custody.

How a Child Can Make an Election

Custodial elections can take place during a divorce or custody modification action. The child can make his or her election to a Guardian ad Litem, create a signed and notarized statement explaining their selection in their own words, which is then submitted to the court, or testify in court as to which parent he or she wants to live with. Under Georgia law, a child can only make a custodial election once every two years. Making contradictory elections within a two-year period can negate both elections or open up the issue of coercion or manipulation by one parent.

If you have more questions about how custody is decided in Georgia, or if you need help with your family law case, contact Porchlight at (678) 435-9069 or set up an initial consultation.