By: Philip C. Sheward December 2014
When they resolved their divorce, Steve and Marie agreed that their three children ( Zach, Jessie, and Beth) should live with their mom, since she had been the primary care-taker of the children during the marriage. Steve had been an involved father during the marriage, but he knew at the time that it was not in the kids' best interest to reside with him because his work schedule didn't offer him enough flexibility. Fortunately, Steve and Marie, despite their differences, were able to agree (most of the time) about when the children were to spend time with their father, and he was able to see the children regularly.
Three years later, Zach, age 17, decided that he didn't like living with his mom anymore. He thought that she treated his sisters better than she treated him and he certainly didn't like all the time that Marie's new boyfriend, Sam, had been spending at their home. So, Zach told his dad that he wanted to live with him. Steve was excited to hear this news from his son, and began talking to friends, family members, and co-workers about the situation. One thing that he kept hearing over and over from people he discussed the matter with was that Zach was now old enough to choose where he wanted to live. Steve, empowered by the news that others shared with him, decided to file for custody.
Unfortunately, Steve's well-meaning friends had passed on to him a common error in interpreting the law in Indiana. The fact of the matter is, under Indiana law, there is no age in which a child gets to choose which parent they will live with. If you think about it, this makes sense. Reasonable parents do not usually allow their minor children to make major life decisions on their own because we know that children are not equipped with the maturity and life-experience to be able to do so reliably. So, if this is the case, if it is true that there is no age in which a child gets to decide, why do so many people have it wrong?
When a court is deciding who will get custody of a child the first time, the overarching consideration is the best interest of the child. This is true also for a subsequent custody modification proceeding, however a court must also find that a change in circumstances from the prior custody order exists. A court can take many things into consideration when trying to determine what is in a child's best interest, but there are eight factors that are specifically listed under Indiana law. Only one of those eight factors has anything to do with the wishes of the child, and the law states that a court can give more consideration to the child's wishes if the child is at least 14 years of age. Thus, many people choose to interpret that particular law to mean that once a child turns 14, they get to choose. The reality is, once a child is 14, a court may give that wish more weight, however it is still only one of at least eight factors that a judge will consider. Further, it has been held by Indiana's appellate courts that if a child's wish to live with the other parent is the only reason that a custody modification is being sought, the change in custody should be denied.
So, the "age old" question, "At what age can my child decide who gets custody?", is really a trick question because there is not an age in Indiana in which a child can decide with which parent they'll live. That said, hard situations like the one Steve was in may still warrant action, and consultation with one of our attorneys at Allen Wellman McNew Harvey can help you determine what to do.