Child’s Wishes in a Custody Dispute

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 What Is a Child Custody Dispute?

Child custody involves assigning legal and physical custody between parents getting a legal separation or a divorce. Physical custody is where the child lives. After a separation or divorce, a child can live with one parent while the other has visitation rights. Or, more commonly today, the parents share physical custody, and the child spends half their time with one parent and half with the other.

Legal custody is the right to make important decisions about the child’s upbringing. This would include such issues as how the child would be educated, the religion in which they would be raised, if any, and the like. In some cases, one parent, the “custodial parent,” usually has legal and physical custody of a child. This means the child would usually live with that parent, who would make the important decisions on behalf of the child.

The other parent may be referred to as the “noncustodial parent .” They would all likely have visitation rights to be with the child at a set time and frequency. The noncustodial parent is often, but not always, required to pay the other parent child support, which helps them to offset the costs associated with caring for the child.

Child custody disputes can sometimes arise if there are disagreements about the way child custody has been arranged or the specific details of the custody order. Child custody disputes can involve conflicts regarding the following:

  • Physical Custody: Which parent has physical custody of the child;
  • Legal Custody: Which parent has legal custody and can make decisions on behalf of the child;
  • Child Support: Whether one of the parents must pay child support to the other and in what amount;
  • Residence of the Child: The parent with which the child will live;
  • Visitation Rights: What types of visitation rights the noncustodial parent has; and
  • Other Issues: Other issues that depend on the circumstances.

In resolving such disputes, the court will need to take various factors into consideration. A common question is whether the child or children are given the opportunity to give input and express their preferences in connection with such matters.

What Does a Court Take into Consideration When Awarding Child Custody?

When awarding child custody in a divorce or legal separation, a court takes into consideration all the circumstances of each particular case. The court tries to accommodate the best environment for the child, in order to secure the proper care, attention, and education for the child.

Ultimately, the court always makes any custody decision based on the child’s best interests. That is, the court places the child’s needs first over the personal wishes or desires of either parent.

Besides this main standard, courts may take various factors into consideration when awarding child custody. In many states, the law explicitly directs judges to consider certain factors. These may include the following:

  • Characteristics of the Child: The child’s age, development, and educational background;
  • Characteristics of the Parent: The background and capabilities of each parent, both financially and emotionally speaking. In some states, a judge cannot award custody to one parent because they have better financial resources only;
  • Special Needs of the Child: Whether the child has any special medical needs or other considerations;
  • Child’s Apparent Attachment to One Parent or the Other: The child’s particular relation or attachment toward each parent; and
  • The Child’s Preference: Sometimes, the child’s input is considered. Some states have an age requirement for considering the child’s input, and some do not.

While there are similarities in state laws regarding custody and the factors courts consider, there are also differences, so a person wants to find out what the law is in their state. One common feature among all states is the adherence to the best interest of the child standard for making final decisions about custody and visitation.

In Awarding Child Custody, Does a Court Take into Consideration a Child’s Wishes?

A court may consider a child’s preferences when deciding on custody. In some states, if the court gives a child’s input any weight in making the decision, the child must meet certain requirements. For instance, they must usually be sufficiently mature to express a reliable opinion about their custody. In some states, a child may have to be a certain age to have their preference considered. This is not true in every state, however.

Although the child’s opinion would probably never be the main controlling factor, it may be considered by the court in determining custody in some cases. In most cases, if the child meets any age or other requirements and has valid reasons for their preference, the court would consider it along with other custody factors. No court, however, would make a custody decision based solely on the child’s stated preference.

In many states, the state’s law includes a child’s preferences as a factor that judges should consider in deciding on custody and visitation. For example, in California, a statute in the state’s Family Code directs courts to consider and give the appropriate weight to a child’s wishes when it makes an order regarding custody or visitation.

Judges in California have done this in different ways. Some have children testify in court about their preferences. Other judges meet in private with the child. Some judges still do not solicit a child’s preferences and do not consider them. So, in California, there is no uniformity among judges regarding the use of children’s preferences regarding custody and visitation.

Are There Any Cases Where the Court Must Follow the Child’s Request?

States other than California have specific statutes and laws regarding a child’s wishes in determining custody rights. Many states have adopted statutes providing that when a child reaches a particular age, they must be allowed to choose their custodial parent.

If a state has not yet adopted such a statute, the court may be able to use the child’s choice at its discretion. This is usually done on a case-by-case basis, as each case differs.

Another example is the state of Ohio. A child’s preferences concerning their living arrangements are one of many factors that a court may consider in deciding on custody and visitation. The court will still decide the issue based on its judgment about what would be in the child’s best interest. The child’s preference is only one of many factors that a court weighs in deciding what is in the child’s best interest.

In Ohio, a parent is allowed to request that a court interview their child so they may express their preference. Ohio law does not specify an age at which it is considered appropriate to ask the child’s preference. The judge might talk to the child in the judge’s chambers without the parents. Other personnel from the court might be present.

A court may also appoint a guardian ad litem for the child if it thinks it would be appropriate or if either of the parents asks for it. A guardian ad litem is an adult who would represent the child’s interest in the proceeding.

If a person were to confront the issue of whether a court may consider a child’s preferences and, if so, how, a person would want to consult an experienced family law lawyer to learn how to deal with this issue in their state.

Why Not Grant Custody to the Parent of the Child’s Choice?

Courts have to make decisions based on the best interests of the child so that they can ensure a safe and secure environment for the child. A court may disregard a child’s wishes if the parent or person the child chooses for their custody is unfit to have custody due to:

  • Moral Depravity;
  • Habitual Drunkenness;
  • Risks of Harm or Abuse; or
  • Other Similar Concerns.

The court can interpret the phrase “moral depravity.” It is purposefully broad as many things might negatively influence the child. For example, a judge may consider a parent’s employment in the adult entertainment industry to be morally depraved, especially if that parent does nothing to keep their child away from exposure to it.

Do I Need an Attorney for Help with a Child Custody Dispute?

The court will take into consideration a number of different factors that affect a child’s upbringing and environment. In some circumstances, a child’s wishes may influence a court’s decision in granting custody or dividing parental responsibilities.

A skilled child custody lawyer will be able to help you present your best case and inform you about the law regarding a child’s preference in custody decisions in your state.


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