The main standard for determining
child placement is the best interests of the child. There are other factors, but the preference
of the child is not the primary issue. A
Judge will typically consider who the child wants to live with, interview the
child in private, will typically hear evidence from the parents, may hear
evidence from a Guardian Ad Litem or home investigator, but is never bound by
the wishes of the child! Considering the
various factors on both parents’ sides, if the Judge finds that the child is
reasonably mature, has clearly expressed a wish to go with one parent or
another, and it would also be in the best interests of the child to allow that
to occur, the Judge will likely honor the child’s preference as to
placement.
Perhaps one of the reasons for a
lot of confusion on this subject in the state of Ohio is that we have had state
laws in the past that allowed children of a certain age (for a while it was 14
years, and then for a while it was 12 years) to choose which parent the child
would want to live with, but in all instances the Court still had to go on to
find that allowing that choice was in the child’s best interests. I can remember hearing about cases where a
child would say she would want to change custody, and then the Court would
discover that there would be a four-wheeler or a new bicycle waiting at the
home of the other parent only if the change occurred! Maybe that is one of the reasons that the
Ohio General Assembly took that out of the law – even though there still was a “best
interests” test, people often misunderstood the application of the law.
Nevertheless, today the child’s
opinion is relevant, the Court can certainly consider it, but it is not
controlling. The more mature the child
and the better the opinion is expressed, the better chance generally exists
that the child’s preference would be honored, but it is not a “slam dunk” in most
circumstances.
This is an area of law where
consulting with legal counsel is often extremely important.
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