Parents often believe that their child can decide where they would like to live but this is not true. Children have a voice but not a vote in custody and visitation matters.
How much weight does their opinion have?
The court looks at a series of factors to determine the custody or parenting time of a child. There are no bright-line rules as to which parent will get custody and what the parenting time will be, so the court uses these factors to determine what is in the best interest of the child. A child’s wishes and concerns are one of eight factors that the court considers when determining the best interest.
How do I get the court to consider their opinion?
Presenting a child’s wishes in court is more difficult than a parent testifying that their child wants X, Y, or Z. The parent asking for the child’s wishes to be taken into account can enter this into evidence using a few different methods. First, the parent can file a motion asking the court to conduct an in-camera interview with the child. These interviews are typically conducted in private between the judge and the child only. It prevents the child from being forced to testify in front of their parents and in front of their parents’ attorneys. Second, a parent could ask for a Guardian ad Litem (GAL) to be appointed. The GAL’s role is to do an investigation and to report to the Court what they believe to be in the child’s best interests. Sometimes children will express their wishes to the GAL who may be able to present those concerns in court. While the GAL must also consider the child’s wishes in determining the child’s best interests, the GAL does not have to advocate for that position, if the GAL does not believe that position is in the child’s best interests. Third, the child could be called as a witness at trial. While calling a child as a witness is not preferred, there may be circumstances under which a parent might choose this option.
My child is mature enough to decide, why can’t the court just listen to them?
Family dynamics can be complicated especially to a child who is more impressionable than a grown adult. Unfortunately, some parents do not have their child’s best interest at heart and would rather do anything to sabotage the child’s relationship with the other parent rather than encourage a healthy relationship. Alienation is commonly seen in these situations and can have a big influence on what the child wants. If the court were to solely honor the child’s wishes in these situations and ignore the other factors, then the alienating parent would be able to continue to sabotage the relationship with the other parent. If you would like to know more about parental alienation, click HERE. (https://tibbslawoffice.com/1837-2/)
Using all of the best interest factors, the court sees a broader picture of the family dynamic and is able to make a decision as to what is in the best interest of the child.
If you would like to read the factors considered in determining the best interest of the child, they are found in Ohio Revised Code 3109.04(F)(1).