My Child Wants To Live With Me, Is This Enough To Modify My Custody Order?

The short answer is, it depends. Indiana has established a specific statutory code for custody modification that requires the parent moving for custody modification to establish certain facts. Depending on your circumstances, your child’s wishes may be enough to modify your current custody order. In this blog, we provide a brief overview of the requirements a parent must meet to modify their current custody order and whether a child’s wishes can be enough.

In order to modify your current custody order, you must establish two things. First, you must show that a modification of custody is in the child’s best interests.¹ Second, you must establish there has been a substantial change in circumstances to one of the following factors: “(1) The age and sex of the child; (2) the wishes of the parents; (3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age; (4) the interaction and interrelationship of the child with: (A) the child’s parents; (B) the child’s siblings; and (C) any other person who may significantly affect the child’s best interest; (5) the child’s adjustment to the child’s: (A) home; (B) school; and (C) community; (6)the mental and physical health of all individuals involved; (7) evidence of a pattern of domestic or family violence by either parent.”²

As such, if your child is at least fourteen and you can establish that it would be in your child’s best interests, then you may be able to modify your current custody order. We say may because the Court of Appeals’ caselaw that guides trial courts gives wide latitude to judges on whether a child’s wishes, standing alone, is enough to modify custody.³ However, more recent decisions from the Court of Appeals’ have shifted towards the Court accepting an older child’s wishes as enough to warrant a modification.⁴ Even if your child is not fourteen, depending on the circumstances, your child’s desire may still be enough to warrant a modification. As one recent court decision held,“[t]hat the child’s wishes are to be given more consideration if the child is at least fourteen years old does not mean that the wishes of a child who is not yet fourteen cannot be considered.”⁵

Child custody modifications can be a trying time for individuals. These types of proceedings are extremely fact-sensitive and require skilled counsel to submit key evidence to support your modifications. These are often complex and serious legal proceedings when a modification of custody is at hand; thus, it may be helpful to seek the assistance of an attorney to help navigate through the process. Dixon & Moseley, P.C. attorneys’ practice throughout the State of Indiana and understand the significance of custody modification and the need for careful planning for the hearing. This blog post is written by Dixon & Moseley, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.

1. Ind. Code section 31-17-2-21
2. Ind. Code section 31-17-2-8
3. Williamson v. Williamson, 825 N.E. 2d 33 (Ind. Ct. App. 2005).
4. In re Marriage of Sutton, 16 N.E.3d 481 (Ind. Ct. App. 2014)
5. Collyear-Bell v. Bell, 105 N.E.3d 176, 186 (Ind. Ct. App. 2018)