As any parent knows, sometimes children do not make the best choices. Perhaps you have discovered that your child wants to live with your ex, despite the bond you thought you had with them. This can be an incredibly frustrating issue, especially if you believe that your ex represents a danger to your child. What will a family court judge make of this situation? Will a judge prioritize your child’s safety, or will they acquiesce to your child’s preferences? Expand on these questions with a Georgia child custody attorney. 

Your Child’s Preferences Matter

First, you should know that your child’s preferences matter. Even if the family court has no legal obligation to follow a decision made by a child who is too young, you should still listen. Children tend to feel a loss of control during a divorce or breakup, and allowing them to have some agency in this process may be beneficial for their mental health. 

In Georgia, children who have reached a certain age have the right to express their preferences in court. Generally speaking, these children are 14 or older (although a child as young as 11 might have an opportunity to express their preferences). If your child is above the age of 14 and wants to live with your ex, this is certainly something the family court will factor in when making its final custody decision. 

You Have the Burden of Proof When Establishing Threats to Your Child

If you believe your ex represents a threat to your child, you have every right to raise these concerns with the family court. That being said, you shoulder the burden of proof as the “accuser” in this situation. In other words, you must prove that your child would likely experience genuine danger when living with your ex. On the other hand, your ex doesn’t necessarily need to prove that they are not a threat. 

This is an important distinction, because there is no real doubt about your child’s preferences. They can sign a legal document called an “affidavit of custody election,” and this document is valid at face value. On the other hand, the allegations you make against your ex are considered invalid until you prove that they are real. In other words, your ex is innocent until you prove otherwise with a “preponderance of evidence.” 

Each Case is Unique

Family courts consider many “best interest factors,” and the child’s preference is only one piece of the jigsaw puzzle. The court might also consider the child’s education needs, their connection with the local community, and much more. Whether the preferences are “more important” than the threat posed by your ex depends on all of these other factors and the specific nature of the danger involved. 

Can a Child Custody Attorney in Georgia Help Me?

If you’re worried that your child will make a poor decision during your child custody case in Georgia, consider speaking with an experienced family law attorney. Generally speaking, judges should understand when a child is clearly making a decision that goes against their own best interests. However, you still need to prove that your ex represents a hazard. Continue this conversation with Lankford & Moore Law today.