A child as young as 11 years old can have input regarding their physical custodian. In Georgia, children between the ages of 11 and 14 may also have some input into their physical custody decision. In these cases, a judge may consider a child's desires between 11 and 14 in determining which parent shall have custody. Unlike elections made by children 14 or older, the elections of children between 11 and 14 are not as controlling. O.C.G.A. § 19-9-3 (a)(6).
At age 14, a child may elect which parent they want to be their physical custodian. Georgia law provides: "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). If there is a current court order concerning the custody of a child, the election of a 14 or older child may also constitute a material change of condition or circumstances sufficient to warrant a modification or change of child custody.
Although the election of a child 14 or older is presumptive regarding custody, it is not absolute. Even if a child does elect to reside with one parent, the other parent may still present evidence to the court contesting the child's election as not being in the child's best interest. If that parent successfully proves that the child's choice is not in the child's best interest, the child's election will not be honored. However, it is difficult to overcome a child's election, and courts typically honor the election of children 14 or older in the absence of extreme circumstances.
For a child to make an election regarding custody, they must sign an Election Affidavit under oath that is then submitted to the court. If the child's election is uncontested and the court finds the child's election comports with that child's best interests, the court will honor the election. If the unelected parent contests the election, the child may be asked to appear in court. If a judge then wishes to speak with the child concerning the election, the judge will do so in chambers to protect the child's privacy and ensure they are not subject to undue pressure from their parents.
