At the Law Offices Of Cara L. Santosuosso, LLC we are collaborative divorce lawyers, and we know that even the most cooperative divorce process can be hard on children. They have to adjust to a new normal and family life that will not be the same as it once was. The courts understand children’s vulnerability as well, and so will always work toward a resolution that is in their best interest.
Couples considering divorce or who may already be divorced and wish to change their shared parenting arrangements could assume that courts will side with their children’s opinion when deciding who is granted the majority of custodial time. However, judges in Ohio take many factors into consideration when making their determinations.
Age Matters
It is a common belief that children’s wishes are king when it comes to deciding which parent will be the primary provider for them after a divorce. That is most likely because at one time, this was the case. In Ohio’s not-too-distant past children who were at least 12 years of age could decide which parent to live with. Today this law is no longer valid. Why not?
Every child is different. Some may, in fact, be very pragmatic at an early age, able to measure the pros and cons of where would be best for them to live. However, this is not the norm, nor is it likely. More often than not, children who are pressed to choose one parent over another could have to endure mental anguish and lasting trauma from feeling as though they were forced to betray a parent they love. In very bad situations, one parent could try and turn a child against the other.
Child custody attorneys and courts frown on this kind of coercion. Instead of putting undue pressure on a young child, adults need to work together to find the best solution that will ultimately benefit the child without compromising their relationship with either parent. This is not to say that a child’s opinion does not matter, just that it will not be the sole deciding factor.
What A Court Looks For
When determining which parent has the larger share of custody, a judge will investigate the family dynamics, living situation, and more on a case-by-case basis to find the option that they feel will most benefit the child. Here are some of the factors that they will look at when making this pivotal decision:
- Wishes and concerns of both the child and parents
- Child’s relationship/interactions with parents, siblings, and others they will be living with
- Level of adjustment to home, school, and community
- Health (mental, physical, etc.) of each party involved
- Each parent’s ability and willingness to facilitate the court’s plan for parenting rights
- Negligence to pay child support (if applicable)
- Conviction of a crime related to abuse (if applicable) or history of domestic violence
- Denial of time spent with a parent
- Parental plans to move out of state
These are the majority of the points that a judge will need to weigh when deciding how to divide shared parenting time. Each party’s daily and weekly schedules, holiday schedule, and vacation schedule can also factor in. While there are clearly many aspects to include in their final decision, the court is not permitted to give either parent preferential treatment because of financial status.
The Impact of A Child’s Wishes
Ohio law no longer gives children the right to choose who they live with. However, as mentioned, an older or more mature child who is sure in their convictions can certainly influence a judge’s determination. Once both parents have made any motions for custody, the court will need to determine whether the child is able to reason for themselves. If the judge thinks that the child would not be able to effectively share their wishes or concerns, then they would not pursue the matter any further. This is often the case with very young children.
However, if the court feels that a child has something valuable to add and the ability to express themselves, they can perform a private interview with the child (or children) in their chambers. This is known as the in camera interview, stemming from the latin phrase that means “in a chamber,” or basically, in private. Either parent can request this provision via a motion filed with the court by their divorce attorney.
During the in camera interview, a child can make their wishes known, apart from either parent. Here the judge can try to get to the heart of their request and learn more about their feelings, needs, and desires surrounding their living situation. Parents are prohibited from obtaining a written or recorded statement from their child–this must be an in person discussion. A guardian ad litem–an unbiased third party, often an attorney–may be appointed by the court to fully investigate the situation and offer the court their professional recommendation for parental custody.
There is one situation that is more likely to result in a child’s request being honored by the court. This may be if both parents agree to allow their child to make this decision, and include this stipulation in their shared parenting agreement. A collaborative or mediated approach like this is encouraged, however the final say will always go to the court. If the court learns that, due to special circ*mstances, it is not in the child’s best interests to take part in determining the allocation of parenting time, then the process is stopped and the court decides the matter without factoring in the child’s wishes. At times the in camera interview may make a child feel as though they are caught in the middle, adding to their stress.
Once the interview is conducted, the court will weigh the child’s wishes and concerns based on a variety of factors, including but not limited to:
- child’s age and maturity
- nature of concerns expressed
- evidence presented to the court
The long and short of the question of whether a child can determine which parent they will live with is no, they cannot. However once they turn 18 years of age and are no longer considered a minor, they have every right to decide where they will live. In the meantime, if they really do not want to spend visitation time with a parent, and this decision is not coerced in any way, they may have the right to refuse, in certain situations.
Consult Experienced Divorce Attorneys in Cleveland, Ohio
Ohio parenting allocation determinations can be complicated. There are a lot of moving parts and plenty of case-by-case factors that could sway the court’s final decision. In the end, every parent’s and child custody attorney’s goal is to see the child involved adjusting well and adapting to their new life. At the Law Offices Of Cara L. Santosuosso, LLC, our collaborative divorce attorneys only want what is best for your child. Maintaining healthy parental relationships is vital to a child’s development and we will fight for you to preserve that right.
If you are in a situation where your child has a clear residential preference but you do not know how to make their wish a reality, do not hesitate to contact our team of child custody lawyers. Wherever you are in your divorce process, we are ready to help.
