Cincinnati Family Law & Divorce Blog: When Can The Child Decide?

When discussing issues of custody and parenting time, a very common question is “at what age does my child get to decide where he or she lives” or alternatively, “when can my child decide when he or she wants to see the other parent.”  There is a common misconception that at a certain age, whether it is 12 or 16, that a child will have the right to determine which parent has custody or what his or her  parenting time with each parent will be.

However, that is not the case in Ohio. Rather, under Ohio law, both custody and parenting time, is determined by the Court after considering a wide range of  relevant factors which help the Court to ascertain what is in the child’s best interest. (O.R.C. 3109.04 and 3109.051) Some of these factors include the wishes of the child’s parents, the child’s interactions and interrelationship with his or her parents, siblings, the child’s adjustment to his or  home, school, and community, the mental and physical health of the parents, the schedule of the child and the parents, and the age of the child. The child’s wishes may be taken into consideration, particularly if the child has been interviewed by the Court or if the child has expressed those wishes to a Guardian ad Litem, which an attorney appointed to represent the best interest of the child. With all of this said, it is true that in most cases, the older and more articulate the child is, more weight will be given to that child’s wishes, because the court must also recognize that ignoring a mature child’s wishes can in and of itself be harmful.

However, the child’s wishes alone, will not determine custody or the parenting schedule and for good reason. For example, a child may want to live with the parent who allows him/her to skip school, stay out all night, and ignore all the rules. In such a case, the Court is likely to find that while the child may want to live primarily with this parent, such an order would not be in the child’s best interest.  Alternatively, when a child has legitimate reasons for wanting to live with one parent over another, the Court can take those wishes into consideration. However, the child’s wishes will still be one factor, of many, which the Court will review in making its decision.