Can my Child Decide Which Parent They Want to Live With?
By Amanda Marsden, Partner, Senior Family & Estate Planning Lawyer, Calgary
When parents are in the process of divorce or separation, sometimes children may express a desire to live with one parent over another. If this occurs in a family law case, the court may take a child’s wishes about parenting time into consideration, but only after examining how those wishes came to be and the capacity of the child to make such decisions.
In family law, which parent a child should live with, or any parenting schedule, is determined by the best interests of the child. The court in such family law cases must weigh many factors to determine these best interests. These factors come from family law cases and legislation, and can include the following:
- The protection of the child’s physical, psychological and emotional safety
- The child’s physical, psychological and emotional needs
- The history of care for the child
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage
- The child’s views and preferences
In a family law case on parenting time, simply stating to the court that the Child has expressed a desire to live with you is not sufficient evidence and is unlikely to be taken into consideration. This is hearsay, but even if the child did express this, we know that children often tell their parents what they think they want to hear. This may occur because a child, especially after a separation and divorce, may want each of their parents to know that they need them and love them.
It is incredibly difficult for a divorce court to know if a child understands the implications of the parenting time preferences they express or if their comments are in fact genuine and not coached by a parent. This is why an independent witness, often a psychologist, may be needed to speak to the child and provide a report.
Often this evidence is presented in something called a voice of the child report. To complete this report in a family law case a psychologist would meet with both the parents and the child independently of each other. The psychologist would assess the wishes of the child and their ability to understand the possible implications of those wishes. The child’s general maturity and intelligence would also be assessed. The psychologist would then provide a report to the court which outlines their findings.
Older children, or those that have demonstrated a great deal of maturity, are more likely to have their wishes considered. In a family law case, the court will give substantial weight to the wishes of children who are over the age of 12 and seriously consider their requests on parenting time. At the age of 16, the wishes of the child may in fact determine parenting time. Therefore, if a teenager has a genuine desire to live with one parent, it is unlikely that the Court will make a parenting order requiring them to live with the other parent, unless there are serious concerns involving violence or emotional abuse.
During a separation or divorce, it is very important for children to feel that their relationship with each parent is encouraged by both of their parents. Divorce and separation is difficult for everyone involved, but it is most difficult for children who are often put in the middle and used as pawns. Children deserve a voice in family law proceedings, and their concerns and feelings should be heard, but they should not be pressured to choose between their parents.
If your child has expressed an opinion about parenting time and you need more information feel free to contact one of the lawyers at Crossroads Law.
