In family law matters and matters involving custody modification, the underlying basis is what is in the best interests of the children. However, what about the direct wishes of a child? How are those determined and used in initial custody matters and modification of custody?
Custody can be modified if there is a substantial change in circumstances and the modification is in the best interests of the child1. The factors to be considered to determine if there has been a substantial change in circumstances include many parts, including the age and sex of the child, the child’s adjustment to home, school, and community, and the wishes of the child2.
There is a caveat to the consideration of the wishes of the child, however. The statute provides that more consideration is given to the child’s wishes if they are at least 14 years old3. Therefore, a 5 year old child who states that they want to live with one parent over the other likely may not rise to the level to be a substantial change in circumstances. But, a 17 year old who notes a desire to live with one parent or the other may help provide evidence that custody modification is appropriate and meets the standard.
The next issue in determining a child’s wishes is how to present the child’s wishes to the Court. Statements made by children to parents are generally hearsay, and will not likely be admissible in Court. In order to determine the wishes of children, especially older children, having a custody evaluation or GAL report may assist professionals in determining the wishes of the child and reporting same to the Court, along with other findings.
Another option for a child’s wishes to be known is to request an in camera interview. This is a conference with the Judge where the child can explain his or her requests as to custody modification. This is generally a less common means of determining the child’s wishes, and an in camera interview may not be granted by the Court, especially if the child is younger.
Custody modification can be a difficult and lengthy process, and understanding the role of your child’s wishes can help navigate the plan for your case. This blog is not intended as legal advice. If you have questions or concerns about your case, Dixon & Moseley, P.C. may be able to help evaluate same. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
