Election: When Can a Child Choose?
At What Age Can a Child Choose Which Parent to Live with in Georgia?
A common question parents ask during a child custody dispute is whether their child can decide which parent they want to live with. The answer depends on the child's age.
Georgia law allows children beginning at age 11 to express a preference regarding custody, but the amount of weight a judge gives that preference increases as the child gets older. Regardless of age, the court's primary concern is always the child's best interests.
When Can a Child Choose Which Parent to Live with?
Children Ages 11–13
A child who is at least 11 years old may express a preference regarding which parent they would like to live with.
However, the child's wishes are only one factor the judge considers. The court has complete discretion to decide whether following the child's preference is in the child's best interests.
Unlike older teenagers, children between 11 and 13 do not have the legal right to determine custody. Their opinion is simply considered alongside all of the other evidence. O.C.G.A. § 19-9-3 (a)(6).
Children Age 14 and Older
Once a child reaches age 14, Georgia law gives much greater weight to the child's choice.
A child who is 14 or older may elect the parent with whom they wish to live, and that election is presumed to be honored unless the court finds that living with the chosen parent would not be in the child's best interests. O.C.G.A. § 19-9-3 (a)(5).
If there is already a custody order in place, a 14-year-old's election may also constitute a material change in circumstances which allows a parent to seek a modification of custody.
Can a Judge Override a Child's Choice?
Yes.
Even when a child is 14 or older, the child's election is presumptive, not absolute.
The other parent may present evidence showing the child's preferred living arrangement would not serve the child's best interests. Although courts generally respect the wishes of children 14 and older, a judge can reject the election when there are significant concerns, such as:
- Abuse or neglect;
- Substance abuse;
- Unsafe living conditions; or
- Other circumstances affecting the child's welfare.
Ultimately, the judge, not the child, makes the final custody decision.
How Does a Child Tell the Court Their Preference?
There are several ways a child's wishes may be presented to the court.
Affidavit of Election
One common method is an Affidavit of Election, which is a sworn statement signed by the child indicating the parent they wish to live with.
Children who are at least 11 years old may complete an affidavit, although the legal effect depends on the child's age.
Guardian ad Litem
If the court appoints a Guardian ad Litem (GAL), the child may communicate their preference during the GAL's investigation.
The Guardian ad Litem may then report the child's wishes to the judge as part of their recommendations regarding the child's best interests.
Speaking with the Judge
In some cases, the judge may choose to speak directly with the child.
Rather than requiring testimony in open court, a judge may meet privately with the child in chambers to avoid placing unnecessary pressure on the child. Whether this occurs depends on the judge and the circumstances of the case.
Practical Considerations
Although Georgia law allows children to express a custody preference, properly presenting that preference to the court can be complicated.
Questions often arise regarding:
- How an Affidavit of Election should be prepared;
- Whether attorneys may communicate with the child;
- Whether a Guardian ad Litem has already been appointed; and
- Whether the child should testify in court.
Because custody decisions can have long-lasting consequences, parents should consult an experienced Georgia family law attorney before attempting to present a child's preference to the court.
Frequently Asked Questions About Child Custody in Georgia
Q At what age can a child choose which parent to live with in Georgia?
Children ages 11 through 13 may express a preference, but the judge is not required to follow it. At age 14, a child's election is presumed to control unless the chosen parent is not in the child's best interests.
Q What is an Affidavit of Election in Georgia?
An Affidavit of Election is a sworn document in which a child states which parent they wish to live with. It is one method of presenting the child's preference to the court.
Q Can a parent challenge a child's choice?
Yes. The other parent may argue that honoring the child's election would not be in the child's best interests. The judge makes the final decision.
Q Does a child automatically get to choose at age 14?
No. While a 14-year-old's election carries significant weight, the court may reject it if there is evidence that the chosen living arrangement would not serve the child's best interests.