Can Children Express Preference in Ohio Custody Proceedings?

Children are at the heart of every custody case, but sometimes children's custody wishes are overlooked. A child's best interests – not necessarily the child's wishes – are central to any custody decision. A judge will decide how much consideration to give a child's or parent's custody preference.

This article provides explains how a child's preference impacts custody proceedings in Ohio. If you have questions after reading this article, please contact a local family law attorney for advice.

Overview of Child Custody in Ohio

Ohio laws don't use the term "custody." But the language they do use, such as "parental rights and responsibilities," essentially means the same thing as what's traditionally known as legal and physical custody. Just like other states, an Ohio custody order will set forth a parenting time schedule and each parent's rights to make major decisions on the child's behalf.

If the judge allocates primary parental rights and responsibilities to one parent, the children will live most of the time with that parent (designated the residential parent and legal custody). At the same time, the judge will divide the other rights and responsibilities between the parents, including the other parent's right to have contact with the kids. Ohio judges may also issue a shared parenting order (similar to what's called "joint custody" in other states). In this situation, the parents will divide the physical and legal care of their children under a shared parenting plan.

Parents can reach their own parenting agreements through mediation or on their own, but they'll need to submit their agreement for a judge's approval. When they can't agree, a judge will resolve custody at trial. Either way, a child's best interests will control the outcome of your case.

When deciding what's best for the child, the judge will consider all of the relevant circumstances, including a long list of factors outlined in Ohio law. (Learn more about child custody laws in Ohio and the factors that must go into judges' decisions.)

What's the Role of Children's Wishes in Custody Decisions?

A judge may consider a child's wishes about custody if:

• the child has enough reasoning ability to express those wishes, and
• it would be in the child's best interests to hear those preferences.

In Ohio, there's no set age when children are considered mature enough to express their custody preference. Instead, the judge will have to decide on a case-by-case basis. But judges are more likely to consider the wishes of an older teen than a young child.

In one Ohio case, the court reversed an earlier custody ruling to grant the custody wishes of 13- and 14-year-old children. The children were just eight and nine years old when the original custody order was issued, and their custody preferences held little sway with the court. Nevertheless, five years later, the children were deemed sufficiently mature, and their parental preferences persuaded the court to reverse its earlier custody decision.

A child's preference can also result in someone other than the parent receiving custody. In another case, a 17 year-old girl stated that she wanted to stay with her aunt and uncle (with whom she had lived since she was five years old). Although the court was not required to follow the 17 year-old's request, her wishes were given serious consideration because of her age, intelligence, and maturity.

When Can a Child Refuse Visitation in Ohio?

Parenting time and visitation schedules are designed for a child's benefit and to help foster a continuing relationship between the child and both parents. Parents must follow the terms of any custody order until a child reaches 18 or is emancipated.

While neither parent has to force visitation between the child and other parent, a custodial parent can face legal consequences for preventing visits. Obviously, it's much harder to get a teenager to attend visits than it is to get a preschooler to the other parent's house. In most cases a judge will encourage a child to foster a relationship with both parents, but judges won't scold or sanction a child for refusing visits.

Will My Child Have to Testify in Open Court in Ohio?

A child won't have to take the witness stand except in an emergency. In Ohio, children are almost always kept out of their parents' custody battles because family law judges recognize the emotional toll a custody trial can have on a child.

Children can still have a voice in a custody case through a custody evaluator, therapist, or Guardian ad Litem. These professionals meet with a child individually, outside of the courtroom, and can represent the child's interests to the judge. Specifically, a guardian ad litem is represents only the child's interests—not the parents'—in a custody proceeding.

Alternatively, a judge may interview a child in chambers. Parents are typically excluded from these interviews and attorneys can only attend if the judge permits it. A court reporter will record any in chambers interview to use at the custody trial. Thus, a child can have his or her testimony heard at trial without setting foot in a courtroom.

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