Can my child choose who has custody in a Ohio Divorce?

One of the most common questions I am asked by a client is “How old does my child to have to be before she can choose what parent she wants to have custody of her after a divorce in Ohio?”

The answer to this question is that there is no specific age where the Court has to rely on a child’s wishes solely when determining who will have custody of her.

In 1991, the Ohio divorce custody statute was amended and the right for a child to choose the custodial parent was deleted.  The new custody statute (contained in Ohio Revised Code 3109.04 – http://codes.ohio.gov/orc/3109.04) spells out a list of factors that the Court must consider when allocating custody of a child.   These factors include the following:

• 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 (sex offenses, etc.)
• Whether one of the parents has willfully denied the other parent his/her parenting time
• Whether either parent has or is planning to establish a residence out of state

As you will note in #2 above, the wishes of a child are required to be taken into account in a custody analysis by the Court. However,  this one factor isn’t always outcome determinative as there are 9 other factors for the Court to review.  However as the child becomes a teenager, this factor is probably weighted more than if the child is 7 years old.    The bottom line is that your child’s wishes aren’t always determinative of the outcome of custody but they are important and taken into consideration during a full analysis under the law.   If you have any additional questions regarding your Cincinnati divorce or wish to set up a consultation please contact Olivia through the information on her website.