ANSWER: The answer is FALSE.
History of the Ohio Child Election Law
Prior to 1946, Ohio General Code §8033 made it mandatory that a child ten years of age or older “must” be allowed to choose which parent they preferred to live with, and the court would have to follow that choice unless the court deemed that parent “unfit.” Venable v. Venable, 445 N.E.2d 1125, 1130 (Ohio Ct. App. July 9, 1981). Even as recently as 1989, the Ohio Revised Code §3109 stated that children twelve years of age or older could choose which parent to live with. Bawidamann v. Bawdiamann, 580 N.E.2d 15, 17 (Ohio Ct. App. Aug. 4, 1989).
However, in 1996 the Ohio legislature amended §3109.04 and eliminated the ability for a child to choose the parent to live with. Butland v. Butland, No. 95APF09-1151, 1996 WL 362038, at *3 (Ohio Ct. App. June 27, 1996). Thus, courts in Ohio no longer considered the choice of the child controlling and opted instead to utilize the ” best interest” factors set forth in the current amended statute. Id.
Ohio Law Today on the Wishes of the Child to Live with a Parent
While the Ohio Revised Code §3109.04 no longer allows the choice of a child to select which parent to live with, the statute still allows a court to consider the wishes of the child along with the other factors. Those factors include: Wishes and concerns of both the child and parents; Child’s relationship/interactions with parents, siblings, and others they will be living with Level of adjustment to home, school, and community; Health (mental, physical, etc.) of each party involved; Each parent’s ability and willingness to facilitate the court’s plan for parenting rights; Negligence to pay child support (if applicable); Conviction of a crime related to abuse (if applicable) or history of domestic violence; and Denial of time spent with a parent Parental plans to move out of state. O.R.C. §3109.04 (F)(1). Click here to read this Ohio Custody statute.
Further, the amended statute did not completely “eviscerate the intention of its predecessor election statute.” Schottenstein v. Schottenstein, Nos. 00AP-1088, 01AP-94, 00AP-1284, 01AP-95, 01AP-36, 01AP-227, 2001 WL 1511949, at *13 (Ohio Ct. App. Nov. 29, 2001). The current statute reveals “no such intention” to effect “a complete reversal” of the earlier law. Id. Instead, courts view the current statute “as an expansion of the power of minor children to have their concerns considered before their eleventh and twelfth birthdays.” Id. The older the child is over the age of 13, the more weight his or her wishes will likely carry with the Court. However, once the child turns eighteen, the decision of where to live is entirely up to them.
PUBLISHER’S NOTE:
I want to thank our law clerk, Evan Pennington, for his help writing this blog article! Evan is a third-year law student at the University of Dayton School of Law. Great job Evan, well done!
Consult our Team of Experienced Attorneys at HCM&M Law in Dayton, Ohio
Here at HCM&M, child custody issues are of paramount importance to our divorce and custody lawyers. We are actively involved in these difficult cases and work with Guardian Ad Litems, counselors and other professionals to fight for childrens best interests. If you are in a situation where your child or children has expressed a clear preference on who to live with but you do not know how to move forward, do not hesitate to contact our team at HCM&M. Wherever you are in your divorce process, we are ready to help!
Also, please use the search tool. We have posted many prior articles about Guardian Ad Litems, and all aspects of custody litigation. To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. Our experienced Dayton divorce lawyers at Holzfaster, Cecil, McKnight & Mues can assist you with your divorce or custody related issues. We can schedule an in-person conference or one by phone or Zoom. We look forward to assisting you!
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Attorney Robert “Chip” Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm’s website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.
