Every child has a voice in a custody case, but judges listen to some voices more than others. A child’s parental inclinations may be considered, but those wishes won't be the sole basis for a custody ruling. The best interests of the child are central to any custody decision.
A judge decides how much consideration to give a child’s custodial preference. The wishes of an older child with better reasoning ability are usually more persuasive than a toddler’s custody preference. However, a child doesn’t have to testify at a custody trial to make his or her wishes known. Children are generally shielded from testifying in court. Additionally, legal safeguards exist to prevent a parent from coaxing a child to testify in his or her favor at a custody trial.
This article provides an overview of the impact of a child’s preference on custody proceedings in Ohio. If you have questions after reading this article, please contact a local family law attorney for advice.
Judges can’t make custody decisions by plugging a bunch of numbers into a calculator. Instead, custody orders are based on several factors. Moreover, judges are given tremendous leeway in determining what is in the best interests of the child.
A court can consider any factor that is relevant to a child’s best interests. Nevertheless, the following factors are looked at in most custody cases, including:
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, mature child will probably be taken more seriously than the parental inclinations of a younger one.
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.
A parent can’t use a letter from a child or an affidavit to make the child’s preference known. Any parent who tries to use a letter from a child risks being sanctioned by the court. However, a child’s preference can be made known through an appointed professional. Ultimately, the child’s intelligence and reasoning abilities will determine how much credence his or her custodial wishes are given.
A child won’t have to take the witness stand except in an emergency. Children are almost always kept out of their parents' custody 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 without being grilled on the witness stand. Frequently, a judge will appoint a social worker, therapist or Guardian ad Litem to meet with a child individually, outside of the courtroom. The appointed child professional may meet with the parents as well, but he or she represents only the child’s interests.
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.