Custody Elections in Georgia

I recently had a client ask me, “Can you tell me at what age can my kids decide where they want to live and not move around? Also, do all kids have to be that age or the eldest?” This is a common question for divorcing parents of teenage and preteen kids.

In Georgia, children may not make a “binding” decision about where they live until age 14. Even then, that decision is not absolute. At that point, a child may sign an affidavit stating a custodial preference, and the court must honor that preference, unless the judge finds that the chosen arrangement is not in that child’s best interests (which is entirely within the judge’s discretion).

Children between 11 and 13 may also express a preference, but their wishes are only one factor the court considers. The judge can follow or disregard that preference depending on the overall circumstances, and there is no presumption in favor of election.

Each child’s right to express a preference is individual, not collective. The oldest child’s preference does not control where their younger siblings live. A judge can, and sometimes does, split siblings’ custodial arrangements if the facts justify it, although in my experience courts generally prefer to keep siblings together when appropriate.

I would also suggest, as a practical matter, that most judges hate affidavits in most cases (I have heard one judge refer to such an affidavit as “legalized child abuse”, for example). There are, of course, bright-line situations (e.g., suppose the children are a 17-year-old boy and twin 5-year-old girls – the boy’s election to live with dad would be pretty easy to understand), but generally speaking it is best to avoid putting the children in a position of having to make such an explicit choice. Often it can be better to engage a Guardian ad Litem, even if only for the limited purpose of interviewing the child to determine that preference.

Of course, every case is different. If you have questions about divorce or custody issues like this one, feel free to contact us and see if we can help.