Can Children Express Preference in Georgia Custody Proceedings?

This article will explain how a child’s preference may impact custody decisions in Georgia.

When parents separate, one of the hardest tasks is determining child custody. When parents can’t agree on a timeshare arrangement for their children, courts must decide which parent will have primary custody of each child, taking several factors into account. In many states, judges may consider the child’s preference when awarding custody.

This article will explain how a child’s preference may impact custody decisions in Georgia. If you have additional questions about the effect of a child’s custodial preference after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Georgia

In Georgia, when parents don’t agree which parent should get primary custody, the court decides and sets forth visitation schedules for each child based on what is in each child’s best interest. Georgia judges consider a number of factors when determining custody, including each of the following:

  • each parent’s love, affection, and ties with the child
  • the child’s relationship with siblings, half-siblings, and stepsiblings living in each residence
  • each parent’s ability to provide the child love, affection, and guidance, and to continue the child’s rearing and education
  • each parent’s knowledge of the child’s needs
  • each parent’s ability to provide the child with food, clothing, medical care, and other basic needs
  • each parent’s home environment
  • which parent’s home is best for continuity and stability in the child’s life
  • each parent’s physical and mental health
  • each parent’s involvement in the child’s educational, social, and extracurricular activities
  • each parent’s work schedule and limitations in caring for the child
  • the child’s special health or educational needs
  • each parent’s willingness to encourage a close relationship between the child and other parent
  • either parent’s substance abuse issues
  • the guardian ad litem or court appointed custody evaluator’s recommendation
  • either parent’s criminal history or evidence of family violence, sexual, mental, or physical abuse, and
  • a child’s preference, once a child has reached age 11.

To read more information about custody decisions in Georgia, see Child Custody in Georgia: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In Georgia, the child’s age is the primary factor that determines whether the court will consider a child’s preference when deciding custody. Judges typically won’t consider a child’s preference when the child is 10 or younger.

When a child is at least 11 years old, but not yet 14, the judge has to consider the child’s wishes, along with all other factors, when deciding custody. The judge doesn’t have to go along with the child’s choice, but the judge must take them into account. If the judge chooses to do so, he or she can grant the selected parent temporary custody for a period of up to six months as a “trial period” to see if a permanent custody award for that parent is appropriate.

When a child is at least 14 years old, the child has the right to select the parent he or she wants to live with. The judge then starts the custody determination under the presumption that the selected parent will have custody. Unless the judge finds that the selected parent is unfit to have custody, the court will award custody to the selected parent. Courts find parents unfit only in rare circumstances, for example, when there is evidence of abuse, violence, drug problems, or other serious issues.

A child’s preference only applies to custody, not to visitation. The judge won’t use the child’s preference to deny the non-selected parent visitation. When a child is over 14 years old and desires to have no visitation with the non-custodial parent, the judge may consider that when deciding visitation, but doesn’t have to deny visitation based on that alone.

Do Children Have to Testify About Their Custodial Preferences in Court?

A large concern that parents have when dealing with a child’s preference in parental custody is whether a child has to testify about their preference in court or in front of the other parent. In Georgia, judges have the authority to hear the child’s preference through a guardian ad litem or a court-appointed custody evaluator.

Alternatively, the child may sign an affidavit stating which parent he or she would rather live with. The judge may also bring the child into judge’s chambers, and speak with him or her directly, or excuse the parents from the courtroom while the judge asks the child questions. The attorneys are also allowed to ask the child questions while the parents aren’t present.

Georgia courts are typically very sensitive to the difficulty a child may have choosing to live with one parent over the other and generally won’t force the child to do so in front of the parents.

If you have additional questions about the effect of children’s custodial preferences, contact a Georgia family law attorney for help.

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