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Motion to Produce the Children

Tonight's post on producing children was written by our Marietta divorce attorney, Alyssa Blanchard.

So you've filed for divorce. As far as you are concerned, this may be the best decision that you have ever made. You have fallen out of love, you are ready to move on with your life and you may even have already found someone.

Or maybe you are not all that excited. Your marriage is over and now you have to start all over. Either way divorces can be tough and stressful. The process itself can be overwhelming. When you have a divorce with children the stress does not just stop with you, it extends to your children.

Not only do you have to start a new life but so do your children. They have to learn to adjust with not having both mom and dad in the home. And then comes the big question of "who do I live with?"

When that question isn't resolved between the two of you and custody is in dispute, the judge will make a determination based on the best interest of the child. O.C.G.A. §19-9-3(a)(2) . If your child has reach the age of 14, (s)he has the right to select which parent to live with. O.C.G.A. § 19-9-3(a)(5). If this is the case, your child will sign an Affidavit of Election, which is a sworn statement telling the court who (s)he wants to live with.

Very rarely will your child speak directly to the judge. However in specific cases, it may be necessary to request that he court speak with your child. For example, what happens when your child signs an affidavit of Election stating that they want to live with you then you receive a copy of an Affidavit filed by your spouse's attorney stating that your child wants to live with your spouse.

If this happens, your attorney could file a Motion to request that the judge speak with your child. The court has the authority to meet with your child. Uniform Superior Court Rule 24.5(B) states, in part, that when custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court.

Not all judges will speak with your child because they understand how stressful and traumatic it can be and would prefer to avoid that if at all possible. No child wants to be put "in the middle" of their parents' divorce. The decision to speak directly with the child is in the court's discretion.

Should the court grant your Motion, both your attorney and your spouse's attorney can be present with the judge, a court reporter and your child. It is a big deal. Your child statement will be on the record.

When the judge meets with your child they are trying to determine your child's desires regarding who (s)he wants to live with. The judge will honor your child's request so long as it is in their best interest.

So, when you move to produce your children, just remember their election in your presence may lose its resolve when the judge starts inquiring. It is a variation on that old adage, the dad is always greener on the other side.

Alyssa Blanchard

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