Georgia law allows a child who has reached the age of 14 years to determine which parent will be the primary custodian. The statute actual creates a right for the child to make this choice, one of the few rights that a 14-year-old can exercise.
Once a child has expressed a desire to live with a parent, the child must sign an election. If there is a pending action for divorce, the election can be filed in the divorce case, and will guide the Court when making a determination of custody. If the parties are already divorced, or were never married, and there is a current custody order in place, the non-custodial parent must file a petition with the appropriate Superior Court to modify custody.
If the custodial parent objects, then there must be a showing that the selected parent is unfit to have primary custody. This is a high burden that lies with the parent filing the objection. The court has little discretion to deny the child’s election regarding primary custody, except in situations where the child would be placed at risk of physical or emotional harm.
For younger children, those that have reached the age of 11 years, but are not yet 14 years, the court can consider the desires of the child regarding custody, but if there is already a custody order in place, the non-custodial parent cannot file a petition to modify custody unless there are other circumstances that justify a change in custody.
Regardless of the circumstances, it is important for both parents to remember that children should not be forced to choose between their parents, because doing so can have serious emotional consequences for the child, and can negatively impact the child’s relationship with both parents. Elections are only appropriate in circumstances where the child comes to the parent with a clear intention to seek a change in the primary custodian.