This question is by far the most misconceived aspect of child custody law in Ohio I have encountered. Following a divorce, or in a situation when the parents were never married, parents often want to pursue custody of their child(ren) based on the fact that the child reached a certain age and wishes to change households. Many believe that once a child reaches a certain age (and I have heard many, i.e. twelve, thirteen, fourteen years old) they have sole decision-making authority regarding which household in which they wish to reside and that Ohio courts will rule accordingly in a child custody case. However, as expressed above, this is simply not the case.
The main issue in any child custody matter is what is in the best interest of the child. In determining this, the court will analyze the case using the factors outlined in Ohio Revised Code 3109.04. The factors the court must consider in a child custody matter are:
1. The wishes of the child’s parents regarding the child’s care;
2. If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
3. The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;
4. The child’s adjustment to the child’s home, school, and community;
5. The mental and physical health of all persons involved in the situation;
6. The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
7. Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
8. Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
9. Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;
10. Whether either parent has established a residence, or is planning to establish a residence, outside this state.
As seen from above, there are many factors the court must consider in determining a child custody matter. Therefore, although one of the factors listed is the wishes of the child, the child’s decision at any age will not be dispositive in determining which parent will be awarded custody.