Aaron Thomas Law Blog

Childrenís Election in Custody Cases

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

– each parentís home environment
– each parentís physical and mental health
– each parentís relationship with the child
– each parentís ability to provide the child with clothing, food, and medical care,
– the relationship between the child and any siblings, half-siblings, or stepsiblings who are in either parentís home,
– each parentís familiarity with the childís health, educational, and social needs,
– each parentís involvement in the childís schooling and extra-curricular activities,
– each parentís 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 childís well-being.

One factor that many parents forget about is the childís 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 (itís 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 childís preference when deciding custody – the childís opinion wonít 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 childís opinion based in part on the childís 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 wonít give the childís much weight. Courts will give more weight to a childís opinion when itís based on that child having a better relationship with one parent than the other.

if a child is 10 or younger, the judge doesnít have to consider the childís preference. Depending on the childís maturity, courts will sometimes consider a young childís preference, but itís unlikely to be the judgeís 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 wonít 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 ďAffidavit of ElectionĒ 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 parentsí presence.