Can My Child Decide Which Parent He or She Wants to Live With?
Let’s have a look at the issue of children’s views on post-separation parenting arrangements.
Can My Child Drive the “Custody” Bus?
Children often have their own views about who they want to live with or how much time they want to spend with each parent after their parents separate. However, children generally do not get to decide which parent they live with after separation or divorce. The decision must be made by the child’s parents or by the courts if the parents cannot agree. Your child’s views can be considered in appropriate situations but will not be determinative of the issue. Let’s have a look at the issue of the child’s views on post-separation parenting arrangements, formerly “custody” or “access” as they were known prior to the recent changes in terminology in the Divorce Act and Family Law Act.
Can My Child’s Views on Living Arrangements Be Considered?
The best interests of the child are the only consideration for any matters involving care and time with children, including the matter of post-separation living arrangements. Section 37 of BC’s Family Law Act sets out the factors for determining the child’s best interests when it comes to decision-making responsibilities, parenting time, and parenting arrangements.
The law says that all of the child’s needs and circumstances must be considered, including the child's views, unless it would be inappropriate to consider them. In other words, BC family law is clearly structured so that a child’s views can be considered. But again, it is important to emphasize that even where it is appropriate to take the child’s views into account, the child’s wishes are not the deciding factor. The outcome will depend on whether the child’s choice is consistent with their best interests.
At What Age Can My Child’s Views Be Considered?
The age and emotional maturity of your child are key factors in determining whether it is appropriate to consider their views about who they want to live with. BC family law does not specify an age at which the child’s views may be taken into account and there is no hard-and-fast rule for determining if a child is sufficiently mature. The outcome of each case will depend on the unique facts but the case law provides a few rules of thumb:
- It is generally not appropriate for BC Courts to receive the views of a child under the age of 12.
- BC Courts commonly consider the views of teenaged children although again, the child’s views will not wholly decide the issue unless they align with their best interests.
- The closer a child is to the age of majority (which is 19 years old in BC), the more say that child should have about where and with whom they want to live and the allocation of parenting time.
How Will My Child’s Views on Who He or She Wants to Live With Be Obtained?
Some children are able to talk maturely about their views with their parents. For others, the issue may be too emotionally charged. Children may have difficulty speaking freely or worry that they are going to hurt their parents’ feelings if they share their views. If you are involved in a parenting dispute, it is advisable to avoid putting your child in the middle of the fight.
Do not ask them to pick a parent and choose sides. Children should be kept out of the conflict between the adults as much as possible. Children can feel enormous pressure to tell each parent what they know they want to hear to avoid disappointing a parent they love very much. Your job as a parent is to try to shield your child from the parenting conflict as much as possible.
It may be necessary for the child to express their views to a neutral party such as a counsellor, social worker, or psychologist. This must be done with the Other parent’s knowledge and consent or if they are not agreeable, the Judge must order that this process be undertaken.
The impartial third party will convey the child’s views in a written report that is sent to the judge and the parents or their lawyers. The parents can then factor the child’s views on how much time they want to spend with each parent into their parenting arrangements. If the parents are not able to agree on parenting arrangements, they will have to ask the Court to make a decision on the allocation of parenting time.
When determining the parenting arrangement that is in the best interests of the child, the judge will assess the child’s age and maturity and decide if it is appropriate to consider the child’s views. The judge will also decide how much weight to give the child’s views as a factor in the overall determination of the child’s best interests.
Who Will Your Child Live with Post-Separation? Get Legal Advice from a Family Lawyer
Separation and divorce will inevitably disrupt a child’s life. Giving your child the opportunity to express their views on living arrangements can be valuable for the child, the parents, and the court, and it may ultimately lead to a more successful post-separation parenting arrangement. The decision about who your child will live with after separation is such an important one.
Protect yourself and your children by reaching out to Valerie M. Little Law Corporation.
Ms. Little is a family lawyer who has been practicing in BC for over 30 years. Her law firm is exclusively devoted to issues of family law in Burnaby, Coquitlam, New Westminster and throughout the Lower Mainland. No matter what family law questions or issues you might be facing, you will receive practical, and knowledgeable advice at the family law office of Valerie M. Little.