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Isn’t it true that, once a child reaches a certain age, she can choose which parent will have her custody?

On Behalf of | Jul 21, 2017 | Uncategorized

This is a very common question, and is a subject about which I have probably seen more misunderstanding than understanding!

The main standard for determining child placement is the best interests of the child. There are other factors, but the preference of the child is not the primary issue. A Judge will typically consider who the child wants to live with, interview the child in private, will typically hear evidence from the parents, may hear evidence from a Guardian Ad Litem or home investigator, but is never bound by the wishes of the child! Considering the various factors on both parents’ sides, if the Judge finds that the child is reasonably mature, has clearly expressed a wish to go with one parent or another, and it would also be in the best interests of the child to allow that to occur, the Judge will likely honor the child’s preference as to placement.
Perhaps one of the reasons for a lot of confusion on this subject in the state of Ohio is that we have had state laws in the past that allowed children of a certain age (for a while it was 14 years, and then for a while it was 12 years) to choose which parent the child would want to live with, but in all instances the Court still had to go on to find that allowing that choice was in the child’s best interests. I can remember hearing about cases where a child would say she would want to change custody, and then the Court would discover that there would be a four-wheeler or a new bicycle waiting at the home of the other parent only if the change occurred! Maybe that is one of the reasons that the Ohio General Assembly took that out of the law – even though there still was a “best interests” test, people often misunderstood the application of the law.
Nevertheless, today the child’s opinion is relevant, the Court can certainly consider it, but it is not controlling. The more mature the child and the better the opinion is expressed, the better chance generally exists that the child’s preference would be honored, but it is not a “slam dunk” in most circumstances.
This is an area of law where consulting with legal counsel is often extremely important.