When parents break up, they don’t always agree on who will have custody of the children. Sometimes the children have an opinion about how much time they want to spend with each parent. Or they might not want to see one parent at all. Should a child’s preferences about custody be considered?
Parents and the Child’s Opinion
Once a child is old enough, she can give her opinion about how much time she wants to spend with each parent. For example, the child might have one of these opinions:
- She wants to live with only one parent.
- She never wants to see one of her parents again.
- She is uncomfortable with the judge’s decision or a custody agreement that says how much time she must spend with each parent.
The parents don’t have to do what a child wants or says, but they must act in her best interests.
When deciding how to react to a child’s opinion, it can be a good idea for parents to consider these factors:
- her age
- the reason for the opinion
A child’s opinion is sometimes based on these factors:
- how she feels at the moment
- changes in her life or a reaction to something, like being punished by the other parent
- the influence of the other parent
- a valid reason
A child’s opinion can be a reaction to problems the parents are having. The law and the courts say that a parent must, as a general rule
- encourage the child to spend time with the other parent,
- avoid asking the child to choose between the parents, and
- not let the child believe that the custody decision is totally up to her.
Once the parents know about the child’s preferences, if they can’t agree on who should have custody, they have several options, including the following:
- ask an expert, such as a psychologist, mediator or social worker, to help them reach a custody agreement
- go to court and ask a judge to decide
Divorce: Vocabulary Change in the Law
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.
The Judge and the Child’s Opinion
The parents can ask a judge to decide how much time the child will spend with each of them.
If the child has something to say about how much time she wants to spend with each parent, she has the right to give her opinion. The judge must let the child speak.
There are different ways to learn the child’s opinion:
- The child’s lawyer can speak for her.
- The child can testify (speak) in front of a judge, with her parents present.
- The child can testify in front of a judge without her parents present.
- The child can talk to the judge outside the courtroom, for example, in the judge’s office.
- An expert can help identify what the child wants.
If the child testifies in front of a judge, someone can be with her to help or reassure her.
Weight Given to a Child’s Opinion: Age and Maturity Are Factors
The judge considers a child’s opinion when deciding how much time the child will spend with each parent. However, the judge doesn’t have to do what the child asks: the judge’s obligation is to act in the child’s best interest.
The older and more mature the child, the more weight the judge will give to the child’s opinion.
Importance of Child’s Opinion
The child’s opinion can be considered but is not normally given much weight. The adults decide.
8 to 11 years
The child’s opinion is carefully considered.
12 years and over
The child’s opinion plays a very big role.
Judges usually go along with how much time teenagers ask to spend with each parent. But there are exceptions.
Other Parent’s Influence Over the Child
Sometimes one parent (or both of them) will try in various ways to manipulate or influence a child regarding custody. For example, one parent might try to convince the child to live only with him and get her to say this is what she wants.
In extreme cases, “parental alienation syndrome” might occur. This means that one parent tries to destroy the image of the other parent in the child’s eyes, with the goal of separating or even eliminating that parent from the child’s life. This kind of behaviour has a serious impact on the child, who doesn’t know who to be loyal to and might end up with a negative attitude toward the other parent.
Luckily, these types of cases are rare. But a parent might try to manipulate a child in other ways:
- by making endless promises to the child
- by showering the child with gifts and constantly taking her places for no particular reason
- by making negative comments about or criticizing the other parent
If one parent manipulates the child, the other parent can talk it over with him to explain how it goes against the child’s best interests. In more serious cases, the other parent can also take one of these steps:
- send a demand letter to the parent who is manipulating the child, asking him to stop
- ask for an expert opinion to shed light on the situation
- explain the situation to a judge
- ask a judge to order the parent to stop criticizing her in front of the child
- ask a judge to order supervision when the parent is with the child
- ask a judge to let her spend more time with the child to protect her from the other parent’s manipulation
A judge who hears testimony from a child who has been manipulated doesn’t have to consider the child’s testimony.
You can learn more about this topic by visiting the Carrefour Parental Alienation website.