If my son turned 13 years old this past March - his father has physical custody we have joint legal custody.

A GA 14 year old has the right to select the parent with whom he or she desires to live. The courts may listen to a 13 year old but the statute provides that a child 14 or older may make an election via affidavit provided if it is a divorce proceeding, then an 11-14 year old could make an election. However, it is important to note that the child does not make the determination. It is still up to the judge to determine what they think is in the best interest of the child. Thus, even though a 14 year old could state that they want to live with their mother again, the judge may determine, based on the facts presented by both parties, that the child should remain in the physical custody of the father. Therefore, if you are thinking of filing for a modification of custody, it is best to hire an attorney to represent you and put on your case.

Your son can sign an affidavit of election if he wants to live with you. The court will give great weight to that once your son reaches the age of 14. However, that is not necessary in order to get a change of custody. If you can show a material change of circumstances impacting the welfare of your child since the current custody was issued, you can file a petition for modification of custody. Then you will have to prove that you becoming primary physical custodian is in your son's best interest. From the scant details you have provided, it appears you may be able to do both of those things. You should consult with an attorney immediately, and if there is a present risk to your son in his current environment, your attorney should ask for an emergency hearing.

You need to file a petition to modify custody. At 13, your son's wishes will be considered but the judge is not bound by them. What matters most is what is in your son's best interest. Your burden is to show that there has been a change in circumstances that impacts your child. Obviously if his father is violent and has mental health issues, this could seriously affect your son. You will need an attorney to make sure you can acquire and present the evidence you need to show the judge. In court it's not what you know but what you can show.