Children will sometimes want to choose which parent to live with or express a preference for residing with one parent over the other. For a variety of reasons, the children do not get to choose which parent they live with but their preferences may be considered. Ultimately, if the parents are unable to reach an agreement on where the children should be residing, a Judge is asked to make the final determination based on the best interests of the children. However, that means taking the decision-making power out of the hands of the parents and giving it to the Judge, a stranger to the family.
Best Interests of the Children and Choosing Which Parent to Live With
No single factor determines what is in the best interests of the children. Instead, a comprehensive review of numerous factors is required to determine their best interests. Section 18 of the Family Law Act has a non-exhaustive list of some of the factors that are to be taken into account. Specifically 18(2)(b)(iv) includes “the child’s views and preferences, to the extent that it is appropriate to ascertain them.” Section 16(3) of the newly amended Divorce Act, which will come into force July 1, 2020, will be adopting similar language to the Family Law Act. Section 16(3)(e) includes “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.” However, issues arise with how to discover the child’s views and preferences and then properly weighing them in the context of all the other factors.
Determining Children’s Preferences on Which Parent To Live With
Parent’s will often disagree on what the child’s preferences are. Sometimes, the children are telling them different things for any number of reasons. Sometimes, the parent is unable or unwilling to recognize the validity of the concern of the child. Typically, involvement from a third party, usually a psychologist, will be necessary to determine the preferences and the reasons for those preferences.
There may be many factors that come into play when a child expresses a preference for one parent over the other. The child may have a stronger connection with that parent, they may prefer their bedroom or the amenities at one parent’s home, they may prefer to be with siblings or step-siblings at one parent’s home. One parent may also just have less strict rules, the imbalance of which can lead toward a preference. Whatever is the cause for the children wanting to choose where to live, their preference alone is not determinative of where they will ultimately be residing.
If you have questions about children wanting to choose which parent to live with, it is always recommended you seek legal advice.
Written by Michael Ross