June 17, 2025

If parents are divorcing, who gets to decide where the children live? Many parents in Ohio believe that the child is allowed to make the ultimate decision because, until the mid 1990s, this was the primary factor. However, the laws in Ohio have changed, and children are no longer the ones who make this decision.

What Changed in Ohio Custody Law?

Custody is not simply who a child lives with. In most cases, parents will have shared parenting, meaning both parents are involved in parenting decisions, like education and healthcare. Physical custody refers to which parent lives with the child. In most cases, physical custody is shared, although the percentage of time with each parent may vary. It is rare for a parent to have sole physical custody without extenuating circumstances.

Up until 1996, children over the age of 12 were allowed by the court to make the ultimate decision of which parent they wanted to live with after divorce – in other words, which parent had primary physical custody. This assumed that by 12, children were mature enough to make this decision. This law was recently changed for a few reasons. The first reason is that not every 12-year-old has the same maturity. Some pre- and young teens can pragmatically consider their options and make a sound decision, but in most cases, adolescents are not capable of considering all the factors. However, a more important reason for this change was that children were pressured to make a long-lasting decision in favor of one parent over the other. Parents were able to manipulate their children and coerce them into making decisions, causing them stress and mental anguish over the feeling of having to take sides and betray one parent.

What Factors are Considered?

When the court is determining physical custody, a judge will weigh many different factors, including the living situation of each parent, the family dynamics, and the family schedules. This can be a thorough investigation that includes the physical and mental health of both parents, the child’s relationship with other family members, each parent’s willingness to work with the court on the custody agreement, if child support has been paid, if one parent has denied the other visitation time, if a parent has been convicted of a crime, if a parent is planning to move out of state, how the custody agreement would impact the child’s school and community situations and the adjustment that would need to be made, and, of course, the wishes of the family. Both parents will be allowed to make their preferences known, and the judge will weigh that along with other factors. One factor that is not considered, although many parents believe it is, is the financial status of either parent. At the same time, each parent’s living situation may be regarded as such that the court is not permitted to give preference based on finances.

Is the Child’s Preference Given Any Weight?

The law has changed, but that doesn’t mean that the children don’t get any say in the process. In the past, children who were at least 12 at the time of the custody agreement could decide which parent to live with, and that was a heavy burden to place on preteens and young teens. While that is no longer the case, the courts understand that the child should have a voice during the process, although the weight of that voice will change with age. The children can typically voice their concerns and preferences in a private interview. A judge may ask to conduct an “in camera” interview, which will be done in person in the judge’s chambers without either parent present. Often, the court will appoint a guardian ad litum (an unbiased attorney who is only concerned about the best interests of the child or children) to be present during these interviews. During the in-camera interview, the judge will consider the child’s age and maturity, their wishes or concerns, and anything else the child has mentioned that may be relevant.

What if a Custody Agreement Needs to Change?

If a custody agreement needs to change for whatever reason, children will be allowed to share their wishes and concerns privately with the judge. In some cases, if a child has matured since the first custody arrangement was implemented, they may have a stronger voice. However, the ultimate custody decision, even for an amended agreement, will lie with the judge.

Having an Experienced Divorce Attorney by Your Side is Key During Custody Decisions

When children are involved, divorce gets more complicated. Custody agreements are complex, and children can easily get caught in a contentious divorce. Every parent should have the ultimate goal of having a well-adjusted child with a healthy relationship with both parents, even after a divorce. Having an experienced attorney who understands how to best advocate for these children is essential. When selecting a divorce attorney, make sure you choose an attorney who is knowledgeable and experienced in custody agreements and can help you and your children move through the process with minimal stress.

No one wants children to suffer when their parents are splitting. However, even though children should have a voice, it is unfair to put that degree of pressure on them to make a long-term decision with many ramifications. Both parents are usually capable of caring for their children, and it is nearly always in the child’s best interest to have a strong relationship with both parents. While allowing children a voice is important, an objective third party can help maintain a strong relationship that children need to thrive.

If you’re facing a custody decision, don’t navigate it alone. Contact Michael E. Bryant today for experienced, compassionate representation that puts your child’s best interests first—call or reach out online to schedule a consultation.