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Child Custody Elections in Georgia

In Georgia at the age of 14 a child may express an opinion of which parent he or she wishes to reside with as a primary physical custodian. The law specifically states, “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 in the best interest of the child O.C.G.A. § 19-9-3 (a)(5).”

The law is further interpreted to mean that a child’s election or testimony, from the age of 14 or older, may serve as a material change of circumstance to issue a change of custody and physical placement. The election of a child still remains presumptive meaning that in the event that the election is disputed the other parent may provide evidence to the court to contest the child’s election as not being in the child’s best interest. If it is believed that the election is not in the child’s best interest then the election will not be taken into account and the request will be denied. In terms of Georgia law precedence on the matter the election of a child is generally honored and is only generally denied in extreme or unique circumstances.

Children Ages 11-14
Children between the ages of 11-14 may also provide testimony regarding physical placement under Georgia law. Judges may take into account testimony from children 11- 14 in terms of the children’s belief of who should have physical custody when making a court ruling. However, if the children are not age 14 or older than their decisions may not hold as much weight in the judge’s ultimate ruling on the matter. . O.C.G.A. § 19-9-3 (a)(6).

How Do Children Make a Child Custody Election?
Children may make an election in regards to custody by signing an Election Affidavit under oath. The affidavit should then be submitted to the court for approval. If the child’s election is not contested the court will appoint the child’s election for physical custody as long as the court finds it’s in the child’s best interest. However, if the child’s election is contested by the nonelected parent then the child will be requested by the court to give testimony as to why his or her election should be granted. In normal circumstance if a judge feels it is necessary to question the child then he or she is generally required to give his or her answers/ testimony in the judge’s private chambers. This is generally done outside of the presence of either parent to ensure the child’s privacy and to ensure that the answers and testimony are not forced or negatively persuaded. Pursuant to O.C.G.A. § 19-9-3, (5)-(6) the election process “a selection can only be made once every two years starting from the date of the previous selection.”

Parents Seeking a Child Custody Change
Once a child reaches the age of 14 a parent may file an election action by filing a petition of Modification of Custody Based on Minor Child’s Election. The Child Custody Election Affidavit provided by the child must be signed under oath and attached to the petition. The petition is then filed and sent to the other parent through legal service. If the election case is contested then it heads to trial where the opposing party may object to the change of placement of physical custody. Any parent objecting to the election placement must provide substantial amounts of evidence as to why the petition should not be granted and demonstrate how the placement would be counterintuitive to the child’s best interest.

Trial / Temporary Child Custody Change
In most cases a judge may order a trial change period in which the child is permitted to try out a placement in the other parent’s physical custody for 6 months and on a temporary basis. If the child decides to withdrawal their request for elective custody then they are able to do so following the 6 month trial period. If it is found that the trial period is not beneficial to the child and works against the child’s best interest then the judge will use evidence acquired in the temporary placement to rule against the child’s wishes.

What is the Best Interest Standard for Children? Under Georgia law, the court is provided several factors to consider when evaluating a child’s best interest, which includes but is not limited to:

  • The love, affection, bonding, and emotional ties existing between each parent and the child;
  • The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
  • The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
  • Each parent’s knowledge and familiarity of the child and the child’s needs;
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  • The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
  • The mental and physical health of each parent;
  • Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
  • Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  • The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  • Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  • The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
  • Any recommendation by a court appointed custody evaluator or guardian ad litem;
  • Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
  • Any evidence of substance abuse by either parent.

Under Georgia child custody law, in addition to other factors that a judge may consider in a proceeding in which the custody of a child or visitation or parenting time by a parent is at issue and in which the judge has made a finding of family violence:

  • The judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
  • The judge shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
  • If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of custody determination; and
  • The judge shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.”

If you are facing a divorce or family law case involving the custody of your children, call us at 770-609-1247 to discuss your case with one of our experienced divorce and family law attorneys.

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