Can My Child Choose Which Parent Has Physical Custody

Andrea M. Johnson

Wednesday, August 05, 2015

"Can I choose who I live with?" 

Many parents face this question from their children while in the midst of a divorce.  While no one particularly wants the children to take center stage in a divorce, the simple reality is that many children can choose who they want to live with and some parents actually ask their children to make that decision.

In the State of Georgia, children at the age of 14 years, can make an election regarding which parent they live with and the Court must consider that election.  The election, however, is NOT presumptive.  The election can be rebutted.  This means that one parent can go to the judge and challenge the child's election.  The challenging parent will have to show that it is not in the child's best interests to reside primarily with the parent elected by the Minor Child.  This seems simple on its face, but is not as easy as it sounds, especially if both parents are sound individuals and neither would have a negative impact on the children.  In circumstances where the children make elections, the Court has to consider not just which parent is a better person, but which parent will make the child a better person.  Sometimes, the child's election is enough to show the Court that he (the child) is a decisive individual who knows what he wants.  Depending on the age, many courts do not want to place a child in a situation where he may be uncomfortable, even if that place is safe for the child otherwise.  Elections of Minor Children are often controlling in custody cases with children who have reached the age of years. 

It should be noted, as well, however, that it is generally not difficult for Courts to uncover when elections have been signed as a result of bribery or coercion of one of the parents.  In the event that the Court believes that an election of a minor child has been "paid for" by the gifts of a parent, that parent is likely NOT to end up with primary physical custody of the child.  Additionally, if a child who is years old has some circumstance, whether mental or emotional, that affects the child's capacity to execute a legitimate election, that election may be easily attacked and not complied with by the Court.

What if my child is not yet 14 years old?  For children between the ages of 11 and 14, elections can be made, but the weight given the child's desires may not be significant.  Just like those elections that are challenged, as detailed above, the ultimate determining factor on where a child lives is simply - what is in the child's best interests.

Typically, the Courts like to make children happy and unless their desires are shown not to be in their best interests, Courts will honor the requests.

If you have a child who is under the age of 11 years old, the Courts typically do not entertain any such evidence.  It is the general feeling that children under 11 years old do not have a capacity to assess their own best interests in where to live.  If you have a young child who is head strong on letting the Court know his/her desires and you as a parent believe the child's desires to be legitimate, uninfluenced, and a true reflection on what is best for the child, you may want to consider requesting the appointment of a Guardian Ad Litem.

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