When a relationship ends there are many decisions to be made, both financially and emotionally. But perhaps the one that is the most difficult and that will have the greatest impact will be deciding what will happen with the children.

One question that is commonly asked is, ‘at what age can a child choose which parent to live with?’ The short answer is, children do not get to decide where they live. At least until they turn 18 years old. However, in many circumstances they may get to voice their opinion.

When you are going through a separation or divorce, you need sound legal advice from experienced lawyers who recognize that the concept of family is personal. At GDH Family Lawyers we offer a contemporary approach to family law suited to meet the needs of your particular situation. We believe nothing matters more than family and we will be with you at every stage, providing timely advice and support.

Best Interest of the Child is the Guiding Principle

The first thing to remember when dealing with access and living arrangements is that family courts make decisions by determining the best interests of the child. It is the guiding principle in the Divorce Act, ensuring primary consideration is given to a child’s emotional, physical and psychological safety, security and well-being. 

In determining the best interests of the child, the court considers many factors including:

• the child’s needs, given the child’s age and stage of development;
• the nature and strength of the child’s relationship with each parent;
• the history of care of the child; and
• the child’s views and preferences, giving due weight to the child’s age and maturity, unless those factors cannot be ascertained;

Considering the child’s views and preferences does not mean they have the final say on issues such as living arrangements. There is a fundamental difference between having an opinion and making a decision. Depending on the age of the child, their opinion may carry little weight with the court. After all, young children often change their minds and what they wanted last month may not be what they want now.

Considering the Child’s Opinion

Separation or divorce can be distressing to a child, especially if the split is not amicable and they have experienced some of the negative fallout of the relationship. They may feel they are caught in the middle of a fight and forced to pick a side. They may also be too afraid to hurt one parent’s feelings by making a choice.

Any decision parents and the court make about parenting will affect the child so they should be encouraged to share their views. In fact, the Department of Justice states that children cope better with the separation of their parents when they are given the chance to express their views.

There is no single approach when it comes to including the child in discussions about parenting arrangements. Some children will be too young. Some will be reluctant to share their thoughts. The Department of Justice advises parents to talk broadly to children about what is important to them, which could include their day-to-day routines, while avoiding direct questions that might put pressure on them. 

Even if the child does have a preference, it should be noted that it is not the only consideration in deciding where they will live. The judge will weigh all factors in relation to the child’s best interests.

Sometimes parents can agree on the best situation for the child. For example, if one parent is remaining in the neighbourhood where the children grew up, that might be the best place for them to live.

Avoid Putting Your Child in the Middle

There are times when parents are unable to resolve their issues amicably and turn to the courts. 

You may find yourself in a situation where your child is unwilling or unable to share their views with you and the other parent. They may believe they are being asked to make a decision that will hurt a parent they love. This may be the time to ask for help from the Office of the Children’s Lawyer (OCL). The OCL is an independent government office representing the interests of a child under the age of 18 in matters and court cases involving such issues as parenting time.

The office essentially gives children a voice. The OCL employs lawyers and social workers who talk to the child in an effort to find out what they would like to see happen. Children are free to talk about problems they may not be able to discuss with their parents. In this way, the OCL is able to advise the court on the children’s wishes with respect to their living situation.

We are Here to Help

The experienced team at GDH Lawyers is here to provide the guidance and advice you need. We can assist you at any stage of your separation, from negotiating with your partner to drafting Separation or Parenting Agreements to vigorous litigation representation in court, mediation or arbitration. Contact us to find out how we can help guide you through this difficult time.