A few years ago the State of Georgia re-wrote their child custody laws. One surprising aspect of this re-write was that the new law made the custody election, or choice of parent, made by a child who is aged 14 years or older, as a matter of law a sufficient change in circumstance to be considered a “material change of circumstances that affects the welfare of the child.” Absent a compelling circumstance, generally, the custody election itself, is enough to allow a court to modify custody. There are facts which, if present, would allow a parent to challenge the election, so it is necessary to consult an experienced family law attorney if you believe your child would like to make an election.

At what age can a child choose which parent with which to live?

According to O.C.G.A. § 19-9-3(5), children who are 14 years old or older may choose which parent they want to live with primarily. Once the child has made a decision, he will have to sign an Affidavit of Custody Election and submit it to the court.

At what age will the court consider the child’s wishes?

Children between the ages of 11 and 14 may voice their opinions on custody arrangements per O.C.G.A. § 19-9-3(6). The court may consider this opinion when determining which parent will be the child’s primary custodian. However, the court is not obligated to go along with the child’s decision.

Will the court always grant the child’s wishes at 14? When will it not grant the request?

Not always. The court has the right to go against the child’s wishes in order to protect his or her best interests.

According to GA Code § 19-9-3(3), judges will consider a number of factors when determining the best interests of the child. Some of these factors include:

  • Each parent’s home environment
  • Each parent’s capacity to provide for the child’s basic needs
  • The capacity to maintain stability in the child’s life
  • The mental and physical health of both parents
  • Each parent’s involvement in the child’s daily activities
  • Evidence of substance abuse by either parent, family violence, or child abuse
  • The emotional ties existing between the child and each parent

It is the court’s responsibility to place the child with the parent that can best ensure the child’s safety and well-being.

Is a child’s decision enough to modify a child custody order?

Parents may file a petition to modify a child custody order if there is a substantial change in circumstances that warrants a custody change.

Courts typically consider health complications, new jobs, or relocation as significant changes. The courts may also consider a child’s selection of a parent after reaching the age of 14 a substantial change in circumstances, per O.C.G.A. § 19-9-3(5).  As a result, a child custody agreement can require modification based on a child’s desire to live with one parent over the other.

However, a child can only make a custody selection once every two years. If the child would like to modify his or her selection, the court will still consider the best interests of the child before making any modifications.

AttorneyCrystal Wright knows how important child custody matters are and she has extensive experience dealing with such cases. If your child has expressed an interest in making a custody election, please contact Crystal Wright at 404-594-2143 or email her at csw@crystalwrightlaw.com