Physical Custody: Child's Election

Updated: Jun 24, 2020

When Can A Child Decide With Which Parent S/He Would Like to Live?



At 14 years of age, a child may choose the parent with whom s/he would like to live. This is termed "child election." Georgia law 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 to be in the best interests of the child." O.C.G.A. § 19-9-3 (a)(5). A child's election holds a great deal of weight in the eyes of the court ( it is very difficult to overcome); however, a judge may overrule the child's election if the opposing party presents evidence showing that the election is not in the child's best interest. It is of importance to note that a child's election may constitute a material change of condition or circumstance warranting a modification of custody. Yes, child election is that significant.

 

What if my child is younger than 14 years of age? Does s/he have a say in the matter?


In Georgia, the short answer is yes, but I know you hear the "But" coming. Let's take a look at the law. "In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling." O.C.G.A. § 19-9-3 (a)(6). So, as you can see, the short answer is indeed , yes, but the desire of a child between 11 and 14 years of age are not controlling. It does not hold as much weight as that of a child who has reached the age of 14..


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