For separated or divorced parents in Indiana, circumstances can significantly change over time, leading one party to seek a modification to an existing child custody or parenting time order. But what role, if any, do the child’s wishes play in these modification cases? The answer lies in Indiana’s laws and the judge’s discretion. Consulting the advice of an experienced family law attorney can help you navigate the child’s wishes in custody modifications. This blog will discuss the wishes of the child in custody modifications in Indiana.
Under Indiana Code 31-17-2-8, when determining the best interests of a child in custody/parenting time proceedings, the court is required to consider “the child’s wishes, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.” So a child’s express desires regarding which parent to live with or have visitation are, by law, one of the statutory factors the judge must weigh-especially if the child is 14 or older.
There are some important points to consider here. First, the child’s wishes are just one factor among many others like each parent’s role, any history of domestic violence, ability to care for the child, etc. Also, the court will determine how much weight to give the child’s wishes based on their age, maturity level, potential undue influences, and the judge’s assessment of the situation. The child’s wishes alone are generally not enough to warrant a modification – there must be a substantial change in one of the statutory factors like a parent’s circumstances.
If a child wants to make their custody preferences known, there are proper ways of doing so. The child may be able to testify in court or in chambers at the judge’s discretion, however, this is typically for older children. Additionally, the child can submit a written statement or recording to the judge, but this is not quite common. The child can speak with custody evaluators or court-appointed child advocates and express their wishes for the modification. Lastly, the child can communicate wishes through a parent’s witness testimony. A judge may opt to meet with older children in chambers privately to better understand their desires free from parental pressure. In-camera interviews are where the child meets with the judge in chambers to discuss their wishes. Notably, this is not always accessible as many judges are hesitant to include a child in the custody and modification proceedings.
Children’s voices are meant to be heard in custody cases, but their wishes are not automatically determinative, especially for younger children. Judges aim to balance a child’s preferences with other statutory factors to arrive at a custody ruling that serves the child’s overall best interests. A mature child’s wishes will likely be given more weight by the court. Ultimately, custody modification rests on whether a change would, in the judge’s assessment, provide a better environment and situation for the child’s emotional and physical well-being going forward. The assistance of an experienced family law attorney can help you navigate the child’s wishes, as well as yours, in custody modification matters. The attorneys at Ciyou & Associates, P.C. have an immense background and experience with family law matters such as custody modification throughout Indiana. We are here to help you with your custody modification matter. This blog was written by attorneys at Ciyou & Associates, P.C., and this blog is not intended as specific legal advice or solicitation of services as this is an advertisement.
