November 13, 2019 | By jryanbrownlawGenerally, yes. The election can be challenged in some circumstances though.
When a child turns fourteen they may elect which they would like to live with. This decision by the child, however, is only presumptive. Presumptive means that the election by the child can be challenged. The only way to successfully challenge an election is to show that the election is not in the best interest of the child.
Courts have some flexibility to disregard a child’s election under Georgia law regarding juvenile elections. The law allows the court to decide against the child if the Court finds the election is not in the best interest of the child. It is true, however, that courts exercise deference to a child’s election and it can be difficult (though not impossible) to challenge an election.
There was quite a bit going on in this case. But, long story short, the father successfully challenged an election made by the child to live with the mother. The court found that, despite the election to live with the mother, it would not be in the child’s best interest.
The court found that the mother had withheld visitation from the father, the mother had made three unsubstantiated allegations of abuse to DFCS in regards to the father, the mother falsely accused of the father of withholding medication, the mother had eliminated the father from decision-making (including medication), and found that the election was influenced by the mother’s seven-year war against the father.
The takeaways are that a parent’s actions matter in the event that an election is challenged and that elections are not always final.
To make an election, the child must sign an Election Affidavit under oath and the affidavit must be submitted to the court. If the election isn’t challenged then this should be sufficient to make the physical custody change happen.
If the election is contested, the judge will likely want to hear from the child on the matter. The judge will usually work to ensure the child’s privacy in this matter.
If you have a questions about a custodial election by your minor child, contact us. We can help you.
J. Ryan Brown Law, LLC
J. Ryan Brown Law, LLC
