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.
Ohio courts don't grant “custody”; instead a judge will “allocate parental rights and responsibilities for the care of children”. 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.
A judge may grant one parent most of the time with and responsibility for the child. This parent is the “residential parent”. In cases where there's a shared parenting order (called “joint custody” in other states) parents share equal parental rights and responsibilities and both parents are considered the “residential parent”.
Parents can reach their own parenting time agreements through mediation or on their own. When parents can't agree, a judge will resolve custody at trial. Regardless, of who decides custody, a child's best interests will control the outcome of your case.
Judges are given tremendous leeway in determining what is in the best interests of the child. An Ohio judge may consider any factor that's relevant to a child's best interests and overall well-being, including the child's relationship with each parent, the child's adjustment to school and community, and each parent's ability to provide the child with a stable environment.
A judge will also look at each parent's physical and mental health, the parents' wishes regarding custody, each parent's earning ability, and each parent's willingness to foster a relationship between the child and the other parent. A child's age, physical health, emotional health, and wishes regarding custody will all be considered.
Finally, either parent's history of domestic violence or abuse is relevant to a custody decision. In many cases, a judge won't award shared parenting responsibilities to a parent who has committed domestic violence in the past. See Ohio Code § 3109.04 (2020).
The goal of any custody arrangement is to give each parent as much time as possible with his or her child while still factoring in a child's best interests. Although courts try to avoid separating siblings, each child's needs will be considered individually. To learn more about custody decisions in Ohio, see Child Custody in Ohio: The Best Interests of the Child.
A court may consider a child's custodial wishes if the child has sufficient reasoning ability to form a mature preference. In Ohio, there is no set age at which a court will decide that children have attained sufficient reasoning ability.Instead, a child's maturity and preferences are evaluated on a case-by-case basis. Nevertheless, the wishes of an older teen child will probably be taken more seriously than the parental inclinations of a toddler.
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.
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.
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.