A child who is the subject of a custody dispute oftentimes has an opinion about which parent with whom he or she wishes to live. Parties may be unsure what, if anything, they should do if the child asks to live with a specific parent or voices a preference for living with one parent over the other. This blog discusses the role of the child’s preferences in Indiana custody cases and how that role can change as the child gets older and has differing experiences in each parent’s home.
The statute governing the factors a court must consider when making a custody determination lists the child’s wishes as one of the factors (I.C. 31-17-2-8(3)) and states that more weight will be given to the child’s wishes if the child is at least 14 years old. This does not mean that a child who is 14 years of age or older may choose which parent with whom they will live, however. It simply means that the court will take the child wishes into consideration, along with all other relevant factors, including, but not limited to, the age and sex of the child, the child’s adjustment to their home, school, and community, and the mental and physical health of all of the parties involved. In order to determine a child’s wishes, the child, if old enough, may testify at the custody hearing, or the court can interview the child in chambers. Attorneys for both parents may be permitted to be present during this interview, and if they are, a record might be made of the interview (I.C. 31-17-2-9). Both testifying in open court and having attorneys present for an interview with the child can be worrisome for parents, as they do not want their child to have to say which parent they prefer to live with in front of both parents, or where the non-preferred custodial parent may later discover what the child said. The McClendon court agreed with this concern, stating that it frowned upon parents calling their minor children to testify in proceedings that might pit the child against the other parent (McClendon v. Triplett, 184 N.E.3d 1202 (Ind. App. 2022)).
An in chambers interview of a child, where a written record is made, can also cause contention in a family when the non-preferred custodial parent obtains the record. Hurt feelings may lead to accusations of coaching or even parental alienation by the parent with whom the child wishes to live. Another issue of concern, when considering the child’s wishes during a custody dispute is the fact that children’s wishes can change and sometimes do so frequently. Such as in the case of Grossman v. Jones, where the appellate court found that the child wanting to live with mother “may be based simply on a lack of supervision and discipline at Mother's home” (Gossman v. Jones, No. 22A-DR-2279 (Ind. App. June 2, 2023)). Changing opinions about where a child wants to live, dependent upon which parent’s rules are more lenient at the time, can be a common occurrence in both young and older children. Older children also will oftentimes decide that they wish to live with the same sex parent. Girls want to learn how to be girls and boys want to learn how to be boys. This is one reason the age and sex of the child, as well as the child’s wishes are included in the factors the court considers when making a custody determination (I.C. 31-17-2-8(1)).
It is likewise not uncommon for a child to choose a particular parent with whom they wish to live because their friends and extra-curricular activities are close to that parent’s home, but too far from the other parent’s to make it convenient to visit friends and participate in the same activities. Children may also choose to live with a particular parent because of pets, step-siblings, household amenities, such as a swimming pool or spa, or the parent’s ability and willingness to provide them with material objects. This is partly why a substantial change in one or more of the factors considered when making an original custody determination is required for a custody modification, as without such a requirement, a child’s change of preference could result in a monthly change of custody. Recognizing this, the Winderlich court stated that, “absent evidence that the existing custody order is unreasonable, a child's wishes will not support a modification of custody” (Winderlich v. Mace, 616 N.E.2d 1057 (Ind. Ct. App. 1993)).
For parents of a teenager who frequently changes his or her mind about which parent with whom they wish to live, perhaps a shared custody agreement is best. This could allow the child to stay at each parent’s home, as the child and parents agree, without requiring any further modification of child support, parenting time, or custody.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
