When parents with a minor child divorce, one of the most emotionally fraught issues that can arise is which parent gets primary physical custody.
In many cases, especially during the school year, it’s simply not practical or desirable to have a child switch houses every week – so one parent usually ends up with the child more-or-less “full time,” while the other parent is allocated visitation.
Georgia is unique in that, unlike many other states, children are granted much more say about their living situations. Here are the basics:
When a child is between 11 and 14 years of age
Children as young as 11 can actually have a say in which parent ends up with custody. When a child is at least 11 years of age but not yet 14, the court is expected to consider the child’s expressed wishes regarding their living situation.
Exactly how the court allows those wishes to be expressed is up to the individual judge. The court may decide to interview the child in private, or the court may appoint a guardian ad litem to speak on the child’s behalf.
However, there is a critical caveat: At this age, the child’s wishes are not the deciding factor in any custody case. While significant, the court is still expected to make all custody decisions with the best interests of the child in mind, notwithstanding the child’s desires.
When a child is over 14 years of age
The situation changes when a child is 14 or older, the child has the actual right to select where they want to live – and their selection is presumed to be in their best interests.
This generally reflects the idea that a child of that age has the maturity to make rational decisions about the situation. In fact, a child’s request (made through an Affidavit of Election) for a change in custody once they attain age 14 constitutes a valid reason for a custody modification, so long as they only request a change once within any given two-year period.
It’s still important to note that the court must apply the “best interests of the child” standard in these cases, which means that the presumption is rebuttable – but it will take more effort.
If you’re anticipating a complicated custody issue in your divorce, seeking early legal guidance is wisest.