Can Children Express Preference in Indiana Custody Proceedings?

An overview of a child’s preference and its impact on custody in Indiana.

Young children rarely get much of a say in custody decisions. However, as children get older, they may have a preference for one parent. That preference becomes important when parents separate. In many cases, a judge will take a mature child’s wishes into account when evaluating custody. The child’s preference may even change the outcome of a custody case.

This article provides an overview of the impact of a child’s preference on custody decisions in Indiana. If after reading this article you have questions,  please contact a local family law attorney for advice.

Overview of Custody Decisions in Indiana

There is no simple solution for determining custody, unless parents can agree. In cases where parents can’t reach a custody decision on their own, a judge will evaluate several factors to decide what type of custody arrangement serves the best interests of the child, including:

  • the child's age and gender
  • each parent’s desire for custody
  • each parent’s relationship with the child
  • the child’s relationship with siblings, half-siblings or other significant persons, like a grandparent
  • the child’s ability to adjust to a change in home, school or community
  • each parent’s physical and mental health
  • the child’s physical and mental health
  • each parent’s history of or past experience with domestic violence
  • any evidence that the child has been cared for by someone other than the parent, and
  • the child’s wishes, with more weight given once a child has reached age 14.

There is no gender preference when evaluating custody. A judge will consider all of the of above criteria to create a custody schedule. To learn more about custody factors and decisions in Indiana, see  Child Custody in Indiana: The Best Interests of the Child.

When Does the Court Consider a Child’s Preference?

If separating parents can agree on custody issues, custody determinations are relatively simple. However, parents often need a judge to make the final decision on custody. In Indiana, a child’s preference is always one of several factors considered by the judge when awarding custody.

Obviously, a 12 year-old’s request to live with a certain parent is given more weight than a 3 year-old’s, because of the emotional maturity that comes with age. Sometimes a parent may try to manipulate or persuade a young child to say certain things in an attempt to gain control of a custody proceeding. In Indiana, a child’s wishes regarding custody are not controlling until the child is at least 14 years old, to help minimize any undue influence from a parent.

Nevertheless, the preference of a child younger than 14 won’t be discounted entirely. Although a judge can’t base a custody decision solely on the wishes of a child under 14, a child’s preference can be considered in addition to the other factors. The individual child’s maturity and integrity can make his or her custodial choice more persuasive. For example, in one case, an 11 year-old’s request to live with her mother was considered and granted after the judge considered other custody evidence and determined the girl to be articulate and mature. But in another case, the desires of a 12 year-old who was intelligent but dishonest, were given less weight.

Judges are trained to watch for signs that a child is being inappropriately influenced when expressing his or her custodial preference. Each child’s needs will be considered independently in a custody case. In some instances, siblings might be separated if the court believes it serves the best interests of each child.

Will my Child Have to Testify in Open Court?

A child can’t be forced to testify in a custody case. However, if a child wants to make his or her wishes known, there are a number of ways to do so without having to testify in an open courtroom.

A judge can appoint a licensed therapist or social worker to speak with the child and testify on the child’s behalf. Alternatively, a child of a competent age may be interviewed by the judge in his or her chambers, outside of the courtroom. Attorneys can observe the in-chambers interview, but parents will typically not be allowed in. The interview will be recorded so that it can later be presented in open court.

If you have additional questions about the effects of children’s preferences in custody proceedings in Indiana,  contact a local family law attorney for advice.

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