Can My Child Decide Who They Want to Live With?
B.C. family lawyers are frequently asked if a child can decide which parent hey can live with and at what age a child can make that decision.
Best Interests of the Child Prevail
The law in B.C. is that the Court must consider the best interests of the child when making a determination of where and with whom the child should live.
The child does not have sole decision - making authority on this issue.
The court may consider the views of the child as one of many factors in reaching a decision as to the residency of the child and the parenting times enjoyed with each parent.
The child’s views are not determinative of the issue.
This approach ensures the child is not influenced, bribed or pressured to make the decision. This ensures the child is removed from the pressure of making such an important decision.
When it is Appropriate to Consider the Views of the Child?
The appropriateness of considering a child's views on parenting and residency issues will depend on the child's age and maturity. It is not appropriate to consider the views of very young children and if the views of a young child are expressed, the Court does not usually give these views much weight. Young children do not have the capacity to make mature, reasoned and logical decisions. They are also more impressionable and subject to being unduly influenced by their parents.
There is no specific age at which a child's views and preferences for living with one parent over another will suddenly be given more weight by the Judge.
The Judge will consider many factors including the child's intelligence, maturity, reasons for the request, the history of parenting time experienced by the child, and the child's health and emotional well-being. Section 37 of the Family Law Act sets our 10 factors for the court to consider in determining the best interests of the child:
(a) the child’s health and emotional well-being;
(b) the child’s view’s, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is guardian and seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or hers responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child or meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risk to the
safety, security or well being of the child or other family members;
(j) any civil or criminal proceedings relevant to the child’s safety, security or well-being;
How is the Child's Views Introduced Into Evidence ?
In times gone by it was not unusual for a child to meet the Judge privately in the Judge's Chambers without either parent present in order for the Judge to hear the child's views expressed.
Nowadays, the child's views will be canvassed by a neutral third party and reduced to writing for both parents and the Judge to read.
One option is for the parties' to agree or the Court to order a Voice or Views of the Child Report. The neutral third party could be a family lawyer or child psychologist. These reports are currently less than $1,000.00 and can usually be completed fairly quickly. Their focus is very narrow - to solely elicite the child's preferences.
Another option is to have the child interviewed by a child psychologist or family justice counsellor in the context of a Section 211 Report which is a broader analysis to determine custody issues. There are often considerable wait times before the report is commenced and private reports and usually start at $12,000.00 and go upwards from there.
Get Legal Advice from an Experienced Divorce Lawyer
If you are separated or divorced and a dispute arises over which parent your children should live with, contact Valerie M. Little, a divorce lawyer who has been practising family law for over 30 years. Ms. Little can advise you about parenting arrangements and custody issues, and she is also able to apply her expertise and knowledge when it comes to other family law issues pertaining to access, child support, and other aspects of the law as it pertains to your children. Ms. Little's practice is exclusively devoted to issues of family law. No matter what family law questions or issues you might be facing, you will receive attentive care, practical advice and understanding at the office of Valerie M. Little. For more information about our family law office or to schedule your private office consultation with a divorce lawyer, please give us a call today: 604-526-3333.