Protecting your rights & safeguarding your children’s future
Ohio law used to allow children of a certain age to choose which parent they wanted to live with after a divorce, but this is no longer the case. Under current Ohio law, minor children cannot choose where they will live once their parents get divorced.
But, this does not mean that a child’s wishes are irrelevant. In fact, the current Ohio child custody statute specifically calls for consideration of the child’s wishes under appropriate circumstances.
Considering a Child’s Wishes in Contested Custody Matters
Section 3109.04(F)(1) of the Ohio Revised Code establishes the primary factors to be considered when establishing custody rights in a divorce. This list is not exhaustive – the law instructs the courts to consider “all relevant factors” – but it covers the most common issues that can play a role in determining the best interests of the children involved.
This “best interests” standard is the overarching principle in all custody-related matters in Ohio, and it helps inform the decision of whether or not (and to what extent) the child’s wishes should play a role. The factors that Ohio courts consider in awarding custody include:
- The wishes of the child’s parents regarding the child’s care;
- If the court has interviewed the child in chambers . . . regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
- The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to the child’s home, school, and community; [and]
- The mental and physical health of all persons involved in the situation.
The list goes on from there.
The Child Must Have “Reasoning Ability” and Seeking His or Her Input Must Not Be Detrimental
As you can see from the statutory language, the judge presiding over your divorce will not automatically consider your child’s wishes. In order for the judge to do so, he or she must interview your child in chambers (behind closed doors), and then he or she will only consider the child’s wishes as expressed directly to the court.
A judge may interview a child in chambers if either (i) one or both parents requests it, or (ii) the judge decides to do so on his or her own initiative. The judge may also appoint a guardian ad litem to represent the best interests of the child.
In any case, the Ohio courts will only consider a child’s wishes if it is in the child’s best interests to do so. Among others, this has two primary implications:
- First, the child must have sufficient “reasoning ability” to make an informed decision about where he or she wants to live. If a child does not yet have the ability to reason, then following the child’s wishes won’t necessarily be in his or her best interests.
- Second, the courts will only ask a child’s opinion if doing so would not be detrimental to the child’s mental and emotional wellbeing. Asking a child to express his or her wishes in this context is effectively asking the child to choose one parent over the other, and this can obviously have drastic implications for a child who is not ready to make that type of decision.
Keep in mind that even if a judge does choose to listen to your child, your child’s wishes are only one of a multitude of factors that go into awarding custody. Your child’s wishes alone will not be determinative, and the judge may decide that countervailing factors favor an arrangement that goes against your child’s expressed desires.
Speak with a Child Custody Attorney at Laubacher & Co. | A Cleveland, OH Family Law Firm
If you have questions about how custody rights are determined in Ohio, we invite you to contact us for a free consultation. Our attorneys have extensive experience in divorce and custody matters throughout the greater Cleveland area. To speak with one of our attorneys in confidence, please call (855) 522-5569 or send us a message online today.
Photo via Flickr by Miroslav Vajdic