The Child's Preference in Custody Cases
Many children and parents often wonder at what age a child can decide their own custody/ living arrangements.
Contrary to popular belief, there is no golden age at which a child’s views will be determinative. Custody determinations are multi-faceted balancing acts that include weighing many different factors in order to determine what is in the best interests of the child.
Typically as children mature, they have the ability to “vote with their own feet” by having their preferences taken into consideration for their living arrangements. The main goal of the court is to ensure that the best interests of the child are being adhered to when deciding custody, access and parenting arrangements.
The Effects of Divorce on Children
Feeling like you have to make a choice between one parent or the other can be psychologically taxing. It can be helpful to have an open dialogue about how your children are handling the separation and having multiple households.
This can ease the transition in the beginning of a separation, but also help to ensure that there is no lasting psychological impact on a child who may feel like they have to choose between each parent or feel guilty for wanting to spend time with the other. You may want to enlist the help of a trained psychologist or social worker to help your child cope during this period of their life.
As children get older and become more aware, it is important to ensure that your child understands their role as a child and not as your confidante, or a mediator between the two parents. It is important to have open lines of communication to help your child feel comfortable and not like their stuck in the middle.
Best Interests of the Child
Although there is no definitive age in Ontario when a child can decide solely on their own, judges will consider a child’s views, wishes and preferences at various ages.
There are multiple ways to ascertain this information. Judges can ask the Office of the Children's Lawyer to prepare a custody and access assessment, speak to the child alone, or ask the child to meet with a lawyer or social worker who prepares a Voice of the Child Report, if the child is over the age of 7.
The judge will then use that information and apply it to the best interests of the child test that can be found in s.24 of the Children’s Law Reform Act.
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Ultimately, the older the child is, the more likely it is that they’re able to make clear and mature decisions about their preferences. Accordingly, with age they’ll be given more substantial weight.
Get the Help of a Professional
If you want to avoid litigation, there are other options to consider in order to make custody arrangements amicably. Mediators, lawyers and therapists all have special training to help resolve disputes. A lawyer can help you negotiate an arrangement that respects your child’s wishes and that is also in their best interests. Andrew Feldstein is a mediator as well as a lawyer.