Once upon a time in Ohio the answer was “yes”. But not any longer. There is much misinformation on the internet about this subject. So, I thought that a review of the child custody laws over the years might be both helpful and interesting. There has been movement away over the years from allowing a child to choose in a divorce which parent to live with. These past “age of election” laws were seen as placing too much pressure on children.
Title VI, Chapter 3, Section 8033 from the Ohio Annotated General Code of 1910 allowed children as young as 10 years old to choose their custodial parent:
“…the court shall decide which one of them (parents) shall have the care, custody….except that, if such children be ten years of age or more, they must be allowed to choose which parent they prefer to live with, unless the parent so selected…be unfitted to take charge of such children…”
Chapter 3109 of the Ohio Revised Code was enacted on January 1, 1974, which states in part:
“(A) Upon hearing the testimony of either or both parents and in accordance with sections 3109.21 to 3109.36 of the Revised Code, the court shall decide which of them shall have the care, custody, and control of the children, taking into account that which would be for their best interest, except that any child twelve years of age or more may be allowed to choose the parent with whom the child is to live unless the court finds that the parents [ sic] so selected is unfitted to take charge or unless the court finds, with respect to a child twelve years of age or older, that it would not be in the best interests of the child to have the choice.”
This statutory provision has been amended and as of April 11, 1991, there is no specific age that permits a child to select his/her residential parent in a divorce. The current version of the law allows the Court to consider the child’s wishes in certain circumstances as a factor in determining the “best interests” of the child.
Ohio Revised Code Section 3109.04 (F)(1)(a-j) delineates the ‘relevant factors’ the Court must consider in making the decision of who will gain custody. They are:
- Wishes of the parents
- Wishes of the child
- Child’s interaction and relationship with the parents, siblings, etc
- Child’s adjustment to the home, school, and community
- Mental and physical health of all persons involved
- Which parent is more likely to honor court approved visitation/companionship rights
- Whether either parent has failed to make all child support payments
- Whether either parent (or other member of the household) has been convicted of a criminal offense that resulted in the child being abused/neglected (specifically lists sexual offenses)
- Whether one of the parents have disobeyed a court ordered shared parenting decree and denied the other parent their rightful time with the child
- Whether either parent has or is planning to establish a residence out of state
When the parents in a divorce or post-divorce action cannot agree on custody or the residential parent designation, the Court will review all of the factors listed in 3109.04 (F)(1)(a-j) above in making its decision regarding the “best interests” of the child. So, while the wishes of the older children will be taken into consideration more so than those of younger children, the children’s wishes are never 100% outcome determinative. Courts do not just “rubber-stamp” a child’s choice once that child reaches a prescribed age (as they were inclined to do many years ago). As one might expect, these cases are very fact sensitive. Obviously, it may not make good sense to “force” an older child to live with a parent against his/her strong wishes. But there is “no black or white” rule to follow regardless of a child’s age. To assist the Court in figuring out the dynamics of what is going on in both homes (as well as a child’s wishes), often a Guardian ad Litem is appointed by the Court in these custody disputes to make recommendations as to the child’s “best interest”. To read more about the role of a Guardian ad Litem in a custody dispute, click here.
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.