Child’s Election

At age 14, a child may elect which parent he or she wants to be their physical custodian. Georgia law provides that: “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 election for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” O.C.G.A. § 19-9-3 (a)(5). If there is a current court order concerning the custody of a child, the election of a child who is 14 or older may also constitute a material change of condition or circumstances sufficient to warrant a modification or change of child custody. Id.

Although the election of a child 14 or older is presumptive regarding custody, it is not absolute. Even if a child does elect to reside with one parent, the other parent may still present evidence to the court contesting the child’s election as not being in the child’s best interest. If that parent is successful in proving that the child’s choice is not in the child’s best interest, the child’s election will not be honored. However, it is very difficult to overcome a child’s election and courts normally honor the election of children 14 or older in the absence of extreme circumstances.

In Georgia, children between the ages of 11 and 14 may also have some input into the decision regarding their physical custody. In these cases, a judge may consider the desires of a child between 11 and 14 in determining which parent shall have custody. Unlike in the case of elections made by children 14 or older, the elections of children between 11 and 14 are not as controlling. O.C.G.A. § 19-9-3 (a)(6).

In order for a child to make an election regarding custody, he or she must sign an Election Affidavit under oath. This affidavit must then be submitted to the court. If the child’s election is not contested and the court finds that the child’s election comports with that child’s best interests, the court will honor the election.

If the election is contested by the nonelected parent, however, the child may be asked to appear in court to provide testimony to the presiding judge about his or her election. Normally, if a judge wishes to speak with a child concerning his or her election, the judge will do so in the judge’s chambers in order to protect the child’s privacy and ensure that he or she feels free to be honest and forthcoming with the judge.