Articles

Elimination Of Child's Right To Elect Custodial Parent

Written By: Linda D. Cooper, Esq.

An Ohio statute previously gave a twelve year old child the right to elect which parent would be designated as the custodial parent for him or her. The statute was repealed (revoked or canceled) in 1990. A child no longer has the right to choose which parent he or she will primarily live with.

The repealed statute has been replaced with a statute that provides that a parent in a custody dispute may request that the court interview the minor child in the Judge's chambers (the Judge's office). The Judge will determine who will be present during the interview. The parents are not listed as parties who may be present. The information received during the interview is not required to be made available to either parent. The information from the child is not the final determining factor. The court will consider the information received from the child, among all the other facts brought forth at trial and the court will give it the "weight" the court feels it merits along with the other evidence.

During the interview, the court must determine the reasoning ability of the child. Although the statute does not specify the criteria further, it implies that the court must determine the maturity level and understanding of the child regarding their situation and any changes in their situation. The purpose of the interview is to inquire into the wishes and concerns of the child with respect to the allocation of custodial rights and visitation rights.

The court may determine that is not in the best interest of the child to have input into his or her own wishes and concerns, in which case the court may ignore what the child expresses. The child does not have to be any particular age to qualify for the interview process.

The current statute specifically provides that no person shall obtain, or attempt to obtain, a written or recorded statement or affidavit from a child regarding his or her wishes or concerns regarding custody or visitation. A court will not accept or consider such a statement.

Requesting the court to interview a child with regard to their wishes and concerns may involve some strategic problems that a parent should consider. Many judges and magistrates dislike being asked to interview the child. They feel that very little useful information can be gathered from the process, especially where there are concerns that the child has been "coached." There is a concern about the child being asked to participate intimately in a process that he or she may not understand. This can be true where a child is very young and the court is asked to interview the child. Even older children may feel that they are being called upon to be "disloyal" to one parent or another.

In any case, you should look to your attorney to guide you in the use of this process. Your attorney knows the jurisdiction in which she or he practices and the attitudes of the Judges and Magistrates toward this process. As a practical matter, parents and their relatives should be very aware that children are intent on pleasing their parents. Often the child will express preferences they know will please each parent. A child may be expressing to one parent their preference for that parent when they are with them, and on the other hand, the child may express the same preference for the other parent when with the other parent.

Aside from the interview process, a child may always be called as a witness. If the child is under ten years old, the court must interview the child to determine if he or she is competent to testify. The child may be called by either party's attorney but will be cross-examined by the other party's attorney as well.