Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Child Election Laws

When two parents decide to break up or divorce, they will face the issue of child custody. This decision has a significant impact on the lives of both the parents and their children. One of the first questions many parents considering divorce will be asking themselves is “can a child decide which parent to live with?” In Georgia, a child may be able to elect which parent he or she wants to live with. It depends on the child’s age and what the court determines is the child’s best interest.

Children Ages Newborn to 10

For children who are 10 years and younger, the judge is solely responsible for deciding child custody. In making his or her determination, the judge will take into consideration all of the circumstances of the case. This includes the relationship between the parents and child, each person’s capacity as a parent and provider, the child’s needs and other basic care, the home environment, each parent’s mental and physical health, and the parent’s involvement in the child’s educational and social schedule. The judge will base their decision on what is in the best interest of the child and what custody situation will promote the child’s welfare and happiness. (Georgia Code § 19-9-3 (a)(1)).

Children Ages 11-13

In Georgia child custody cases, children between the ages of 11 and 13 years have some legal rights as to which parent they want to live with. In these cases, the judge will consider the child’s wishes in determining which parent will have physical custody. He or she will also take the child’s best interests and educational needs into consideration, as well as any reports from the guardian ad litem. The judge has complete discretion in making this determination about custody. They do consider what the child wants; however, their top priority is the child’s best interests. (Georgia Code § 19-9-3 (a)(6)).

Children Ages 14 And Older

So, at what age can a child choose which parent to live with in Georgia? Once a child turns 14 years old, he or she has the legal right to choose which parent to live with. Under Georgia law, this custody election is “presumptive,” meaning that unless the child’s selection jeopardizes their best interests, the judge will allow it. (Georgia Code § 19-9-3 (a)(5)). If a child elects to live with one parent, and the other parent believes that decision is not in the child’s best interest, they can present that argument in court. If successful, the judge will not honor the child’s election about his or her preferred parent.

It is important to note that children can only change their elections about custody once every two years, and the “best interests” standard will always apply.

Election Affidavit

For a child to make an election about custody, he or she must sign an Election Affidavit under oath and then submit that document to the court. It is not uncommon for the judge to ask to speak to the child in private, typically in the judge’s chambers. This is to ensure that the child can speak freely and honestly with the judge about their election.

Your children are the most important things in your life. Should you be faced with a child custody issue, it is essential to have a knowledgeable and respected attorney help you navigate the process. Let Bivek Brubaker & Prescott LLC’s child custody lawyers help you protect your children’s future and your rights through the legal process. Contact us or call (404) 793-6530 today to speak with one of our highly qualified adoption attorneys.

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