In all child custody litigation—the original determination by a court or in passing on a modification petition—the trial court always looks at what is in the child’s best interests. In making its initial determination to award physical custody, there is no preference for either parent. With a modification, a substantial change in circumstances must be established and be in the child’s best interests. In this blog, we cover how courts consider the wishes of a child fourteen (14) years of age or older.
With regard to age, a child’s advanced age is important to two (2) significant types of litigation: custody modification and repudiation. With repudiation, a child who seeks a higher education contribution who has repudiated the parent he seeks contribution from is treated as an adult and there can be adult consequences. For example, if a child who is eighteen (18) and about to start college seeks a contribution from his estranged parent, the court may reject this consideration because an adult (this child) is held to the consequences of his action. Thus, the consequences of not having an adult relationship with his/her parent may be that the court has rejected a higher education request.
While repudiation cases are rare, the age (and sex) of a child frequently come into play in child custody cases. By statute, the court is directed to give more consideration to a child’s wishes if the child is fourteen (14) years of age or older. However, this is not a black and white rule (or in legal parlance, bright-line rule) that just because a child turns fourteen (14), he or she can pick who to live with. For example, if the evidence demonstrates a fourteen (14) year old child is extremely immature and wants to live with and be in the other parent’s primary custody because he or she has less structure at that home, it is unlikely the court will modify custody because that is not in the child’s best interests (and the court must consider all other relevant factors relating to the best interests).1 On the other hand, if a child has not yet reached fourteen (14) years of age, but is mature and intelligent and has a good reason to live with the other parent, the court may well consider that evidence, rely on it heavily and modify custody (or consider this in the initial determination on divorce).2
In fact, the Indiana Court of Appeals has rejected the notion that a child’s wishes under fourteen (14) years of age should not be considered; it is the maturity level and intelligence of the child that have import as it stated in the Sabo case: “The statute provides that one of the factors courts should consider in deciding custody disputes is ‘[t]he wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.’ We note first the statute does not direct courts to discount entirely the wishes of children under the age of fourteen. It merely provided that a child’s wishes are to be given more weight in the court’s balancing of factors if the child is at least fourteen (14) year of age.”3 Thus, the child’s desire to live with the mother was entitled to some consideration by the court despite not yet being fourteen (14) years of age.
Ultimately, despite age, if you have an intelligent child who has a valid reason for wanting to live with the other parent, Indiana trial court judges are empowered to consider their wishes in making a best interest’s determination. Where this is the case, it is key to have skilled trial counsel to assist you with developing the evidence and presenting it in court. Most judges do not like to have children called as witnesses. However, there are a variety of legal tools to make a child’s voice heard. Your counsel may employ to do exactly that, such as a guardian ad litem or a custody evaluation. So the take-away is your child’s desires may play a critical role in your custody case if you correctly develop and present the evidence. Dixon & Moseley, P.C. advocates handle complex child custody cases throughout the state. This blog is intended for general education and is not intended as legal advice or a solicitation for services. It is an advertisement.