This is Part 5 of a Columbus Ohio Child Custody Lawyer series on the Ohio Child Custody Process. DISCLAIMER
- Ohio Child Custody Part 1
- Ohio Child Custody Part 2
- Ohio Child Custody Part 3
- Ohio Child Custody Part 4
WHERE THE CHILD WANTS TO LIVE: WISHES OF THE CHILD
Q. How old does my son or daughter have to be in order to be able to choose which parent he or she will live with?
In Ohio, there is no “magic” number at which a child is given full authority to decide which parent will be the Child’s “home base.” Under most circumstances, the Court is required to consider the wishes of the Child. Generally, the older the Child is, the more weight the Court will give to the Child’s wishes. It is a common misconception that in custody, visitation or shared parenting proceedings, a child can make the decision for themselves once they reach the age of 12. This is not true in Ohio. Although children 12 years or older are sometimes allowed to give or withhold consent to their own adoption, they are not permitted to decide custody, shared parenting, or visitation matters.
Q. Can my son or daughter just tell the Judge that they would like to live with me?
The Court may interview the Child, if requested by either party, or upon its own motion. The purposes of the interview is to determine the wishes of the Child and to help the Judge or Magistrate decide what is in the best interest of the Child. Usually, the interview will be done by a Magistrate either right before or at the end of a trial. Generally, courts will not interview a child to avoid litigation or to settle a case. In addition, courts do not like parents to discuss parenting conflicts with their children any more than absolutely necessary.
Q. How do I request that my child be allowed to talk to the Judge or magistrate?
In Ohio, the procedure for this is to file a Motion for In Camera Interview. People often think that “In Camera” means that the interview will be video taped. This is not true. The term is from Latin, which is often used in the Law. It means that the Child is interviewed in the Judge or Magistrate’s chambers, instead of the Child being put on the witness stand in front of his or her parents. Neither parent is allowed to be present during this interview, but the Judge or Magistrate usually has a guardian ad litem, if one is appointed, and a court reporter present.
If the case goes to trial, each party must present their evidence according to the Ohio Rules of Evidence. If the evidence is not presented in compliance with the Ohio Rules of Evidence, then none of it will come into evidence, and none of it will be considered by the Judge when making a decision. Once trial is ended, evidence is CLOSED. It doesn’t matter if the person did not have a lawyer. It doesn’t matter if they hire a lawyer after the evidence is CLOSED. It doesn’t matter if the lawyer they did hire did not prepare for trial, even if he didn’t prepare for trial because you could not afford to pay the Lawyer to do so. It doesn’t matter if you thought there really wouldn’t be a trial that day and you or your Lawyer were positive you would be able to get the court date continued. There are NO DO-OVERS. There are no special breaks for people who do not have an attorney. The trial is over, the record is CLOSED, and the Parent has to live with it. If all the evidence that complied with the Ohio Rules of Evidence favored the other Parent, then the other Parent is going to win and you are going to lose. No new evidence can be presented on appeal, no matter how good your Lawyer is, so do your best job the first time around.