Attorney, Cordell & Cordell
A very common question in custody cases is, when can my child decide which parent he/she wants to live with?
In common practice, however, the courts will allow children who have reached typically the age of 14 to select the parent with whom they wish to reside.
The child’s selection is presumptive, unless it is determined that the selection of parent is not in the child’s best interests.
Yet again we encounter the old "best interests of the child" standard.
Previous laws in the state I practice in (Georgia) allowed for a child to make the ultimate decision and provided for no window of judicial review of the election.
In 2008, the legislature made a change allowing that the best interests of the child be evaluated. This opened custody cases such that any time a child makes an election to live with one parent, the other has the right to challenge the election and the court must entertain evidence regarding the best interests of the minor child.
In real practice, it is very rare that you see a party file an objection to a child’s election. The standard is pretty tough and an objecting parent would have to come close to proving an inability to parent for a child’s election to be overridden.
For children below the age of 14, there is no presumption whatsoever regarding their desires.
There is, however, a rule that allows for children between the ages of 11 and 14 to make their desires heard. Children falling between these ages can file written elections of custody.
The judge has broad discretion as to what to do with the child’s election. The judge will consider the child’s desires as a factor in determining custody, but the judge will also consider other factors to include the educational needs of the child, the parent’s ability to provide for the child, the environment the child may be exposed to, etc.
Many factors go into determining custody, and with the election of a child under 14, all of those factors continue to be relevant.
The judge will have complete discretion in making the custodial determination, and the child’s desires will not be controlling. Judges typically do not favor the idea of a young child being forced, or even asked, to make a decision regarding their parents.
Often, a young child’s desires will be conveyed through a Guardian Ad Litem rather than by the filing of a written election.
If the election of a child is being rendered in a modification of custody case, rather than at the time of the initial divorce action, the election itself may serve as sufficient change in circumstances for a modification of custody to be warranted.
If the child is over the age of 14, his election is a sufficient basis for filing a modification action. A child’s election, if under the age of 14 is not sufficient to serve as the basis for a modification action.
It should be noted that a child can file an election of custody only once within a two-year period.
Cordell & Cordell has men’s divorce lawyers located nationwide should you seek legal representation.
Andrea M. Johnson is a Senior Attorney in the Atlanta, Georgia office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Johnson is licensed to practice law in the state of Georgia. Ms. Johnson was born in the metro-Atlanta area and has spent most of her life in Georgia. She received her Bachelor of Science in Political Science from Columbus State University in Columbus, Georgia in 1998. Ms. Johnson received her Juris Doctor from Mercer University School of Law in 2002. Since graduating from law school, Ms. Johnson has practiced in the area of family law. Additionally, she has worked in general civil practice, immigration, and estate planning. Ms. Johnson has briefed two cases successfully before the Georgia Court of Appeals, one of which was a modification of custody action.