There’s no question about it, in a divorce, dissolution, or when parents decide to live separately, one of the most difficult issues is where the children will live. When your children have been living with you full time, it’s hard to adjust to the idea that they might soon be spending most of their time under the other parent’s roof, and not yours. For many parents whose children are especially close to them, there is an impulse to try to leverage that closeness into an advantage. Those parents often want to know, “Can a child choose which parent to live with?”
The short answer is, “not exactly.” Under Ohio laws concerning the allocation of parental rights and responsibilities (child custody), a child’s wishes and concerns about the parents are considered —but the child does not have the final word. As in other states, Ohio courts determine a child’s living arrangements based on the “best interest of the child.” (In that spirit, what we used to refer to as “custody” is now called “residential parenting.” The term “custody” implies ownership, and children are not things to be owned and controlled. Since 1991, Ohio statutes have used the term “allocation of parental rights and responsibilities” for decisions regarding residential placement of children).
Also since 1991 when Ohio statutes were revised, the child’s wishes and concerns are just one factor among many to be considered by the Court. Before 1991 (due to an insertion in the law some years prior based on the needs of a particular legislator in his own divorce case, really!), a 14-year-old-child could make the decision, and it was determined, based on years of experience of judges, psychologists, social workers, and lawyers, that doing so was far too much pressure on a child.
A court can consider a child’s wishes about where to live and how time is spent with both parents as one part of an evaluation of the child’s best interests. Parents need to think about how those wishes are communicated, and if doing so is really best for their child.
How Ohio Courts Learn Where a Child Wants to Live
There are a couple of ways in which a court may discern a child’s wishes about where to live when the court is allocating parental rights and responsibilities. First, the court can appoint a guardian ad litem for the child, either in its own discretion or on the motion of either parent. The guardian ad litem’s responsibility is to represent the child’s best interest in a domestic proceeding like a divorce, dissolution, parenting between never married partners, and issues arising after a decree.
In order to do that, the guardian ad litem conducts an investigation, which involves talking to the child, reviewing records relating to the child, and interviewing and gathering information from teachers, doctors, counselors, and others with knowledge of the child and family. Then the guardian ad litem prepares a report to the court. The court is not required to accept any recommendations of the guardian ad litem, but usually gives those recommendations serious weight.
Another way a court can learn about where a child wants to live is to speak directly to the child in an “in camera” (in chambers) interview (know that the term “in camera” has nothing to do whatsoever about filming or videotaping). The court first evaluates the child’s reasoning ability. If the court believes that the child has sufficient reasoning ability to express a preference, and it would be best for the child to do so, the court will listen to where the child wants to live.
In an in camera interview, the judge, the Guardian ad Litem if there is one, and any necessary court staff are present with the child. Rarely, the court may decide to allow the parents’ attorneys to be present, but the parents are never present, to avoid putting unnecessary pressure on the child. However, let’s be honest: even without parents physically present, meeting with a judge in a case concerning where you would live between your parents is already terribly stressful for a child of any age.
In reality, the child’s preference about where to live is almost never the determining factor in a residential responsibility case. But that’s not how it feels to a child, sitting in a judge’s office surrounded by adults hanging on the child’s every word. To the child, it feels like they are choosing between their parents. And that is a terrible position in which to place a child of any age.
Learning a Child’s Custody Preferences: Dos and Don’ts
Simply put, putting a child in the middle of a parenting dispute is not good parenting. Parents are the adults and should be the ones making the decisions, including about where the child should live. A court should be allocating residential responsibility only when the parents cannot.
If that is the situation in which you find yourself, there are some dos and don’ts you should observe. Let’s start with some of the things not to do. Do not ever try to coach, influence, or bribe your child to express a preference for living with you. Try not to be a bad co-parent through the process. It’s possible (not certain) that you might get what you want in the short term—for your child to live with you. But you will sacrifice something much greater in the long term: your child’s well-being.
Along the same lines, Ohio law states that “No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child’s wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child.” In other words, don’t try to record on your phone your child saying how much they want to live with you, or try to get them to write a letter you can show the court.
Now for some of the things you should do when trying to determine where your child will live. First, do everything possible to make the decision with your co-parent, including mediation, which may help you achieve a customized resolution that is best for all involved.
If you absolutely must bring your parenting issues before the court, and you want your child’s preferences considered, request the appointment of a guardian ad litem. A guardian ad litem is trained to handle these situations with sensitivity, which minimizes harm to your child and gets the court the information it needs.
If you have more questions about child custody in Ohio, please contact Melissa Graham-Hurd & Associates to schedule a consultation.
