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Children's Election in Custody Cases

Posted by Aaron Thomas | Feb 17, 2016

Father and daughter

When a judge is deciding which parent should have primary custody of a child, there are many factors in play:

– each parent's home environment
– each parent's physical and mental health
– each parent's relationship with the child
– each parent's ability to provide the child with clothing, food, and medical care,
– the relationship between the child and any siblings, half-siblings, or step-siblings who are in either parent's home,
– each parent's familiarity with the child's health, educational, and social needs,
– each parent's involvement in the child's schooling and extra-curricular activities,
– each parent's willingness to foster a relationship between the child and the non-custodial parent,
– the relative stability of each parent,
– any history of substance abuse by either parent
– any history of physical abuse, sexual abuse, or neglect of children by either parent, and
– any criminal histories of either parent, and all other factors that affect the child's well-being.

One factor that many parents forget about is the child's preference.

In Georgia, when a child is 14 or older, that child can select which parent he or she wants to live with, and the court will go along with it unless the parent is simply unfit to have custody. Most parents are fit to have custody (it's not a high bar), so children over 14 can effectively choose which parent they want to live with primarily.

If a child is between 11 and 14, the judge has to consider the child's preference when deciding custody – the child's opinion won't be the deciding factor, but the judge must consider it along with the other factors. In these situations, the court will determine how much weight to give the child's opinion based in part on the child's reasons. For example, if a child wants to live with one parent because that parent is more lax with discipline and has a bigger TV, the judge probably won't give the child's much weight. Courts will give more weight to a child's opinion when it's based on that child having a better relationship with one parent than the other.

if a child is 10 or younger, the judge doesn't have to consider the child's preference. Depending on the child's maturity, courts will sometimes consider a young child's preference, but it's unlikely to be the judge's deciding factor. Courts often deem children 10 or below too young to have a meaningful preference that would be in their own best interests.

Courts are typically sensitive to how difficult it is for a child to choose between parents. Judges usually won't force a child to testify in a courtroom in front of the parents. There are two common ways children make their preference known: The child can sign an 'Affidavit of Election' stating the election to the court, and/or the judge can interview the child in chambers, in front of the attorneys, but outside of the parents' presence.

About the Author

Aaron Thomas

Founding Attorney Aaron Thomas is a well-known litigator, having won dozens of jury trials and bench trials across the state of Georgia...

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