Do Children's Wishes Matter in Indiana Custody Modification Cases?
When parents go through a custody dispute, a common question arises: Does my child’s preference matter? Many parents believe that once their child reaches a certain age, they can simply "choose" which parent to live with. However, in Indiana, custody decisions are based on the best interests of the child, not just their preference.
This guide explains how Indiana courts consider a child’s wishes in custody modification cases, including the role of age, legal procedures, and how parents can navigate this sensitive issue.
How Do Indiana Courts Consider a Child’s Wishes in Custody Cases?
Indiana follows the best interests of the child standard when determining custody modifications. A judge will only change custody if:
There is a substantial change in circumstances that affects the child’s well-being.
The proposed modification serves the child’s best interests.
While a child’s preference is one of the factors the court considers, it is not the only or the deciding factor. Judges evaluate multiple aspects before modifying a custody order.
At What Age Can a Child Choose Where to Live in Indiana?
Unlike some states that set a strict age where children can decide, Indiana does not give minors the absolute right to choose which parent to live with. However:
At age 14 or older, the court gives greater weight to the child’s preference.
For younger children, the court may still consider their wishes, but they hold less legal influence.
Example:
A 16-year-old who has been living with one parent but wishes to move in with the other due to a better school district may have their preference strongly considered.
A 7-year-old who prefers one parent over the other simply because they allow more screen time will likely not sway the court’s decision.
How Are a Child’s Wishes Presented to the Court?
Parents cannot simply tell the court, “My child wants to live with me.” Statements made by children to parents are generally hearsay and not admissible as evidence. Instead, there are specific legal methods for presenting a child’s wishes:
1. In Camera Interviews with the Judge
An in camera interview is a private meeting between the judge and the child. The judge asks questions to understand the child’s perspective without parental influence.
Key Points:
✔️ Judges may use in camera interviews to assess a child’s maturity and reasoning.
✔️ These interviews are not guaranteed—the judge decides if they are necessary.
✔️ Parents and attorneys are not present to avoid undue pressure on the child.
2. Guardian ad Litem (GAL) or Custody Evaluation Reports
A Guardian ad Litem (GAL) is a court-appointed advocate who investigates the child’s circumstances and makes a recommendation to the court.
A GAL may:
✔️ Interview the child, parents, and other relevant parties.
✔️ Observe the child’s living conditions.
✔️ Review school and medical records.
✔️ Submit a report detailing what custody arrangement best serves the child’s interests.
A GAL’s opinion carries significant weight because they act as a neutral third party.
Factors That Influence the Weight of a Child’s Preference
When courts consider a child's wishes, they look beyond the child’s simple preference and assess why they want the change. Some factors that strengthen or weaken a child’s preference include:
Factors That Strengthen a Child’s Preference:
✔️ Maturity & Reasoning: If the child has well-thought-out reasons (e.g., better education, stability), the court is more likely to consider their wishes.
✔️ History of Stability: If the child has consistently expressed the same preference over time.
✔️ Parental Fitness: If one parent can provide a more stable environment.
Factors That Weaken a Child’s Preference:
❌ Coaching or Pressure by a Parent: If a parent influences the child’s decision, the court may disregard their preference.
❌ Superficial Reasons: If the child’s reason is based on minor preferences (e.g., “Mom lets me stay up late”).
❌ Negative Parental Influence: If one parent speaks negatively about the other, the court may see this as harmful to the child’s well-being.
What Evidence Can Parents Use in Custody Modifications?
Since children cannot testify in most custody cases, parents must present legally admissible evidence to support their case. This may include:
✔️ Testimony from a GAL or custody evaluator
✔️ School, medical, or psychological records showing a change in the child’s well-being
✔️ Witness statements from teachers, counselors, or family members
✔️ Past custody agreements to show stability or instability
The Role of Hearsay in Custody Cases
Many parents assume they can tell the judge what their child has said about custody—but this is often inadmissible hearsay.
Hearsay is an out-of-court statement made by someone who is not testifying under oath. Since children usually do not testify, statements made by them outside of a formal interview or evaluation cannot be used in court.
How to Proceed if Your Child Wants a Custody Change
If your child expresses a desire to change custody:
✅ Consult an Attorney: A lawyer can advise you on how to present the child’s wishes effectively and legally.
✅ Request a GAL or Custody Evaluation: This can provide an objective assessment of what is best for the child.
✅ Document Concerns Over Time: If your child’s preference is based on concerns like instability or mistreatment, gather relevant evidence.
✅ Encourage Open Communication: Focus on your child’s emotional well-being rather than pressuring them to choose sides.
Legal Guidance for Indiana Custody Cases
Custody modifications involving a child's preference are legally complex. Courts carefully evaluate whether a child’s wishes align with their best interests, and improperly presenting their preference can harm your case.
If you need legal assistance in an Indiana custody modification case, Vining Legal can help.
📞 Call (317) 759-3225 today or schedule a consultation to discuss your options.
Conclusion
While a child’s wishes do matter in Indiana custody cases, they are just one factor among many. Courts prioritize stability, well-being, and the best interests of the child over preference alone. If you believe a custody modification is necessary, seek legal guidance to ensure your child’s voice is heard in a way that follows Indiana law.
📅 Schedule a consultation today: Click Here
