Can my daughter tell the Judge where she wants to live?
There is a common misconception that a child can choose where he or she wants to live at a certain age. Under Ohio law, there is no magic age that allows a minor child to make that decision. Instead, the Court must look to several factors listed in the statute. The child’s wishes regarding his or her living arrangements are one consideration, but are not the sole deciding factor.
A child will not testify in a custody trial. A parent is not permitted to testify to what a child has told him or her. So, how does the Court determine a child’s wishes? There are two common ways to put a child’s wishes before the Court when parents are not able to reach an agreement regarding custody and visitation (now commonly called parenting time).
Frequently in cases where the parents cannot agree, a guardian ad litem (GAL) will be appointed to represent the child’s best interests. A GAL is an unbiased third party, frequently an attorney, who will conduct an investigation and present the Court with a recommendation as to what the GAL believes is in the best interest of a child in a custody matter. A GAL has several tasks that must be completed in his or her investigation, including speaking with a child and asking his or her wishes. It’s important to note that a GAL appointed in a private custody or divorce case is not acting as the child’s attorney. A GAL’s recommendation is not required to be the same as the child’s wishes; however, the GAL must tell the Court what those wishes are. In some cases, a conflict between the wishes of the child and the GAL’s recommendation may lead to an attorney being appointed to represent the child directly.
The “in camera” interview is another method available for the Court to learn the child’s wishes. An “in camera” interview occurs in private with the Judge/Magistrate, GAL, child and child’s attorney (if one is appointed). Neither parent is present. This method allows the child to be interviewed as to his or her wishes without formally testifying in front of his or her parents.
If you are involved in a custody dispute and would like more information regarding how the Court considers a child’s wishes, call to schedule a consultation with one of our family law attorneys.