Can Children Express Preference in Indiana Custody Proceedings?

Young children don't have much of a say in custody decisions. However, as children get older, a child may express a preference to live with one parent. That preference becomes important when parents separate or divorce in Indiana. 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.

Physical and Legal Custody in Indiana

Parents can work out their own custody arrangements or let a judge decide their case at trial. In both situations, a judge will ensure that the physical and legal custody arrangement serves a child's best interests.

"Legal custody" is a parent's right to make major decisions on behalf of the child. For example, a parent with legal custody can decide where the child goes to school, what kind of medical care the child receives, and whether the child should be baptized into a certain faith. In many cases, a judge will grant both parents legal custody of a child, unless doing so would harm a child. See Ind. Code § 31-17-2-15 (2020).

A parent with "physical custody" primarily lives with the child. When parents share physical custody, they'll both spend substantial time with the child. This is often called a "joint custody arrangement."

Alternatively, a judge may award just one parent physical custody, called "sole physical custody." The parent without sole or primary physical custody is called the "noncustodial parent." The noncustodial parent still has visitation rights and will receive regular visits with the child under a custody order.

At What Age Can a Child Refuse Visitation in Indiana?

Visitation and custody orders are designed around a child's needs, not a parent's. However, a parent should have regular visitation as long as it doesn't harm the child. The primary custodial parent has an obligation to ensure that the child is available for visits with the noncustodial parent as set forth in the custody order. When a young child refuses visits with the noncustodial parent, the custodial parent is going to take a lot of the blame. Parents have a lot of power over young children, so a judge won't be very sympathetic to a custodial parent's claim that a 3 year-old is refusing visits.

However, it can be difficult to make visits happen if a 17 year-old is refusing to show up for visitation. Parents have much less control over an older child, and while a judge can encourage a teenager and the custodial parent to make visits happen, it can be difficult to enforce. What is clear, is that there's no tolerance for a custodial parent who prevents visits between the child and the other parent.

Determining Child Custody in Indiana

There's no simple formula for determining custody, unless parents can agree on all custody terms. Some parents are able to resolve custody with a mediator's help. In cases where parents can't reach an agreement on their own, a judge will decide custody at trial based on all the evidence.

Specifically, a judge will evaluate several factors to determine what custody arrangement serves the child's best interests, 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 or family 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. See Ind. Code § 31-17-4-1 (2020). To learn more about custody factors and decisions in Indiana, see Child Custody and Visitation in Indiana.

Child Preference in Indiana Custody Cases

Many parents wonder can a child choose which parent to live with in Indiana? 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. A judge may have a custody evaluator speak with the child and parents individually outside of a courtroom setting. Alternatively, a child of a competent age may be interviewed by the judge in his or her chambers, outside of the courtroom. See Ind. Code § 31-17-2-9 (2020).

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.