What is an Election of Child Custody?

When deciding on child custody issues, the court will take in to consideration all factors pertaining to the wellbeing of the child.  Any and all decisions will thus be rooted in what the court believes is in the best interests of the child.  Starting at age fourteen, the court will take into consideration the wishes of the child, but can overrule them if it believes the child’s election will not work in his/her best interest.

In fact, in 2008 the law was amended so that the judge need not find the elected parent “unfit” in order to overrule the child’s election, but can base the decision on evidence of the best interests of the child.

Here are some factors that Georgia divorce and family law courts consider in custody cases:

• Emotional ties to each parent
• Capacity of each parent to emotionally, physically and financially take care of the child
• Home environment of parent
• Employment schedules
• Recommendations to the court from a guardian ad litem

What happens if the parent who stands to lose custody based on the child’s preferences believes strongly that it is not in the child’s best interest to not consider their wishes?  In this case, the parent would need to challenge the child’s election with a modification action.  Then, the parent must collect and present evidence as to why the child’s election is not in his / her best interest.

Examples of evidence that could be effective in building a case for this issue:

• The capacity (or lack thereof) of the elected parent to provide for the child financially or take care of him / her physically and emotionally
• The lack of safety in the home environment of the elected parent
• Proving that the home environment of the elected parent is not conducive to providing a stable social / emotional environment for the child
• Addressing physical disabilities or mental health of the elected parent
• The selected parent’s time / employment limitations
• The selected parent’s history of violence, aggression or verbal abuse
• The selected parent’s substance abuse

It is important to keep in mind that the court will take into consideration strongly the election of the child. Thus, if a modification action is filed with the intent of overruling the child’s election, the judge is looking for a substantial reason that honoring the child’s election will not serve his / her best interest. This is unlike the general child custody election process where the judge compares both parents to select the best fit for the child’s wellbeing. Thus, for you to challenge a fourteen year old child’s preferences, your reasons must be serious and substantial.

If you believe that your child has been coerced into choosing the other parent or is choosing the other parent to “take care” of them and they are not really acting based on their own preferences, you may want to hire a guardian ad litem or court appointed custody counselor to advise the court on the matter. Keep in mind that divorce is a stressful time on your kids, and preventing them from electing where they would like to live if they are mature enough to make that decision in the eyes of the court could strain your relationship with them and cause problems inconsistent with their wellbeing.

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