Considering family law is a major area of focus for our practice, we quite often have parents that are going through a divorce or separation ask us if their child can choose which parent they want to live with or at what age can their child make that decision. Many clients are surprised to hear that officially children cannot choose which parent they want to live with until they reach the age of majority, which is 18 in Ontario. However, we also explain that if there is a dispute between the parents over custody and access, the courts may very well take the child’s opinions and preferences into consideration.
In the case where parents are unable to mutually agree on a parenting agreement at the time of separation, the courts may become involved to rule on custody and access. The primary concern of the judge is to ensure the best interests of the child are at the center of his/her decision. The older and more mature a child is, the more their opinions and preferences will be taken into consideration by the court.
However, with younger children their preferences carry less weight on the decision of the courts for numerous reasons. A separation or divorce is a difficult time for a child. If the separation is not amicable, a child may be exposed to a parent’s negative views and feelings of the other parent. It can be difficult for a child to clarify their own feelings regarding a parent, especially if one parent is extremely hurt or upset over the separation. It is not uncommon for a child’s opinion to change from one day to the next, based on the events of the day. A child may favour staying with his mother after she purchases that video game he really wanted and the next day he may want to live with his father after his mother rejected the idea of a sleepover. Children may feel as if they are caught in the middle of their parent’s feud, and are trying to make each parent happy. They may not be sharing their true feelings and preferences with each parent.
As a child grows and matures, they tend to manage their emotions better, are able to articulate their thoughts better, and have a greater consistency with their views and preferences. The courts will give greater consideration to the preferences of older children versus those of younger children. Even though there isn’t a specific age where the courts will allow a child to decide what parent they live with, it is around the age of 12-13 where the courts will heavily take into consideration the child’s wishes, and around the age of 16 where the courts take a child’s preference earnestly.
We strongly recommend you let us advise you regarding the following commonly asked questions:
When can my child decide with which one of us to live?
My son doesn’t want to see his mother anymore, can he just stop going to visits?
Will the court listen to my child during the custody and access court proceedings?
At AGS Law we offer comprehensive family law services in Barrie and South Eastern Ontario, our team will assist you in formulating a plan which will allow your child to have their opinion and preferences heard in your family law proceeding. Please give us a call today 705-735-0003 and let us help you.