Can A Child in Ohio Pick Which Parent to Live With in a Divorce – Yes or No?

ANSWER: The answer is NO – they cannot choose under current Ohio child custody preference laws.

Publisher’s Note: There is so much misinformation online these days that perhaps that is one of the reasons clients frequently still ask me this question. The Ohio age of election law was changed nearly 30 years ago! Here is the history about this change for those wanting to know the correct posture of that law.

The History of the Ohio Child Election Law

Prior to 1946, Ohio General Code §8033 made it mandatory that a child ten years of age or older “must” be allowed to choose which parent they preferred to live with, and the court would have to follow that choice unless the court deemed that parent “unfit.” Venable v. Venable, 445 N.E.2d 1125, 1130 (Ohio Ct. App. July 9, 1981). Even as recently as 1989, the Ohio Revised Code §3109 stated that children twelve years of age or older could choose which parent to live with. Bawidamann v. Bawdiamann, 580 N.E.2d 15, 17 (Ohio Ct. App. Aug. 4, 1989).

However, in 1996 the Ohio legislature amended §3109.04 and eliminated the ability for a child to choose the parent to live with. Butland v. Butland, No. 95APF09-1151, 1996 WL 362038, at *3 (Ohio Ct. App. June 27, 1996). Thus, courts in Ohio no longer considered the choice of the child controlling and opted instead to utilize the ” best interest” factors set forth in the current amended statute. Id.

Ohio Child Custody Preference: How Courts Consider a Child’s Wishes Today

While the Ohio Revised Code §3109.04 no longer allows the choice of a child to select which parent to live with, the statute still allows a court to consider the wishes of the child along with the other factors. Those factors include: Wishes and concerns of both the child and parents; Child’s relationship/interactions with parents, siblings, and others they will be living with.

Level of adjustment to home, school, and community; Health (mental, physical, etc.) of each party involved; Each parent’s ability and willingness to facilitate the court’s plan for parenting rights; Negligence to pay child support (if applicable); Conviction of a crime related to abuse (if applicable) or history of domestic violence; and Denial of time spent with a parent if parent plans to move out of state. O.R.C. §3109.04 (F)(1). Click hereto read this Ohio Custody statute.

Best-interest factors guide judges in every case involving Ohio child custody preference disputes

Further, the amended statute did not completely “eviscerate the intention of its predecessor election statute.” Schottenstein v. Schottenstein, Nos. 00AP-1088, 01AP-94, 00AP-1284, 01AP-95, 01AP-36, 01AP-227, 2001 WL 1511949, at *13 (Ohio Ct. App. Nov. 29, 2001).

The current statute reveals “no such intention” to effect “a complete reversal” of the earlier law. Id. Instead, courts view the current statute “as an expansion of the power of minor children to have their concerns considered before their eleventh and twelfth birthdays.” Id. The older the child is over the age of 13, the more weight his or her wishes will likely carry with the Court. However, once the child turns eighteen, the decision of where to live is entirely up to them.

As an alert, there are drastic changes pending in the Ohio legislature that may significantly change this area of the law soon. We will keep you posted!

MuesLaw provides experienced advice on Ohio child custody preference matters and all parenting-time issues that may arise during a divorce or dissolution

MuesLaw can assist you with your divorce, dissolution and parenting/custody related issues. To learn more, please go to our website at mueslaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to assisting you!

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