Under Georgia law, once a child reaches 14 years of age, he/she can elect the parent he/she wants to reside with. The election of a child age 14 years or older shall control unless the parent the child chooses to live with is deemed to be unfit to have physical custody of the child. Unless there is a specific finding by the court that the parent selected by the child age 14 years or older is unfit, the selected parent will be granted physical custody of the child and the court does not have authority to act otherwise. It should be noted that children age 14 years or older cannot elect both parents as joint physical custodians. Children age 14 years or older can only select one parent to be the physical custodian. It should also be noted that a child 14 years or older can only make an election regarding physical custody. A court can still grant both parents joint legal custody if it is in the best interests of the child despite the child’s election of a physical custodian. The decision of a child age 14 years or older to reside with the non-custodial parent can, in and of itself, constitute the material change or circumstance required for a modification of custody action, as long as such an election has been made only once within a period of two years from the previous election.
For children who’ve reached age 11 years, but are not yet 14 years of age, the court will consider the child’s desires and educational needs in determining physical custody. However, the judge has complete discretion in choosing which parent will be the child’s physical custodian and the best interests of the child standard applies. Further, unlike with children age 14 and older, the decision of a child between the ages of 11 and 14 years to reside with the non-custodial parent does not alone provide the basis for the material change or circumstance required for a modification of custody action. For questions regarding a child’s election of a custodial parent, contact The Douglasville Family and Divorce Attorneys at (770) 485-6620.