Let’s face it: children aren’t known for their stellar decision-making abilities. There is a common misconception that there is some “magic age” of 12 or 14 when a child can choose with which parent to live, but the truth is, there is no age when a minor in Ohio can make that decision.
Who does decide?
The Court has the final decision regarding who the children should live with. Even if the parents allow the children to choose and incorporate that desire into a shared parenting plan, the final say belongs to the court. Not even the parents have unfettered authority to make that choice once they enter divorce court.
That doesn’t mean that parents shouldn’t try to work together to reach an agreement. It just means that the court has to approve any agreement. The court is an objective, detached 3rd party that doesn’t have ulterior motives, doesn’t worry about hurt feelings, and doesn’t care about “winning”. The only concern of the court is determining what is in the best interest of the children.
Do my kids’ wishes even matter?
Of course, they matter to you. And the court may try to take them into consideration, but as we said at the beginning: kids aren’t always known for making the best decisions. Some kids are simply too young to share their wishes. Other kids may lack the capacity for reason and may not understand what is truly in their best interest. In every divorce involving child custody, the court must deem that the child is capable of sharing reasoned wishes and concerns before they can even begin to consider what the child may want. And bear in mind that even if the child is capable of sharing their wishes with the court, there may be special circumstances where the court decides it is not in the child’s best interest to determine their wishes and concerns. In those instances, the court may not be able to give as much weight to the child’s wishes as you might hope.
Will the judge talk to my children?
It is quite possible that the judge may interview your children, if they have met the criteria we just discussed. But don’t be alarmed if the judge schedules an “in camera” interview. Contrary to how the term sounds, your child’s interview will not be recorded. “In camera” is a Latin term that simply means “in chambers” or “in private”. And private it is. In fact, it won’t even become part of the public record. You will not be allowed in the room when the judge interviews your child. If a guardian ad litem has been appointed, he or she might be included. The court may also use its discretion to allow your attorney to be present. But parents are excluded. It’s important that children be able to speak freely and discuss their feelings honestly.
If the court has decided to consider your children’s wishes, please do not try to “help”. You are prohibited from obtaining – or even attempting to attain – a written or recorded statement from the child regarding his or her wishes. The court is forbidden to accept evidence such as an affidavit, letter, or recording of the children’s wishes.
What else does the court consider?
Your wishes and the wishes of your children may be considered by the court. But that’s only one aspect of a much wider set of considerations for the court. How much weight the court gives those wishes depends on the answers to questions such as:
- Will the parents both encourage the kids to have a relationship with the other parent?
- What kind of relationship does the child have with parents, siblings, grandparents, and others?
- How well is the child adjusted to home, school, and the neighborhood?
- How is the physical and mental health of everyone involved in this decision?
- What is the likelihood of each parent abiding by the court’s order?
There is no magic formula
As you are probably realizing by now, Ohio’s laws regarding parenting time are complex. The allocation of responsibilities and parenting time will probably look a little bit different in every divorce case. It’s a multi-step process of evaluating 1) whether to determine the child’s wishes; 2) what those wishes are; and 3) how much weight to give those wishes, in light of all of the other factors a court must consider.
We’ve given you just a little insight into what goes into a court’s decision regarding parenting time, but your situation is going to be unique to you. It’s important that you have all the information you need so you can avoid making any serious mistakes, and the only one way to get that is by speaking to an experience family law attorney who knows the courts and Ohio custody laws. You can start by talking to one of the experts at Kirkland & Sommers about your specific situation by scheduling your free consultation today!