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Does a Child Have the Right to Elect the Parent They Want to Live With?
Pursuant to O.C.G.A. § 19-9-3, (5)-(6), in all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitutes a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.
(6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.
What is the best interest test? The Court follows the following criteria in determining what is in a child's best interest:
(4) In addition to other factors that a judge may consider in a proceeding in which the custody of a child or visitation or parenting time by a parent is at issue and in which the judge has made a finding of family violence:
Generally, an election case is presented after a divorce or Legitimation has been in effect for several years, and the child reaches age fourteen (14) and chooses to live with the other parent. A party seeking to file an election action would proceed by filing a Petition for Modification of Custody Based on Minor Child's Election. The child is required to sign an Election Affidavit under oath, which is attached to the Petition. Then, your counsel files the Petition, and proceeds with service. In the bulk of our cases, the Election decision is not contested by the other.
According to Georgia divorce law, the court may grant an uncontested divorce 31 days after the defendant spouse has been served with the complaint.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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