When parents separate, the most wrenching decision is often "who does the child live with"?

Regardless of court orders or legalese such as joint custody, co-parenting or joint guardianship, it is the parent that takes care of a child on a day-to-day basis that benefits the most from the joy and satisfaction of being a parent.

Most parents are of the view that a child needs a single base; a single home. This is a peculiar preconception and is not backed up by any overwhelming body of social study but instead seems based on a pervasive and commonly-held opinion.

It should also be said that in many situations of separated parents, one of the parents is content to leave the primary residence responsibilities to the other, and just see their child from time to time, such as on weekends.

Parenting is not for everybody. The joys of parenting are invisible to those who focus on having to wake up at 3 a.m. to deal with a toothache when you have an important meeting or flight to catch at 7 a.m.; or the juggling of job and parenting.

This may partly explain why only about 5% of custody cases ever make it to trial.

Nonetheless, one of the most commonly asked questions in family law is "at what age can a child decide for himself which parent to live with?"

This is often the case with sons who although living with the mother as of separation, have a growing gender affinity towards cohabitation with their father.

Daughters can also be prone to this dilemma. As with their male siblings, it is sometimes simply because they prefer the anticipated rules at Dad's place.

There are a few rules of law which applied to resolve these issues.

Courtroom kid

Rule #1: There Are No Rules

Although not entirely unheard of, it is rare for a jurisdiction to say on the record that a certain age, a child can decide with which parent he/she will live.

For example, consider this extract from the American state of Georgia (Georgia Code, §19-9-3): 

 "In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child....

"In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling.... The best interests of the child standard shall be controlling...."

This novel statutory directive is either avant-garde or just plain nonsense depending on who you ask.

The reason for not setting a specific threshold in legislation is fairly obvious to anybody with experience as a parent.

Each child is different in terms of cognitive development, maturity and the processing of stress.

Some nine-year-old children have the wherewithal of a 14-year-old. Conversely, some 14-year-old children have the maturity of a 10-year-old.

Exacerbating the formula is the reality that children who have lived through a separation of their parents, are forced to deal with extremely heavy emotions, a charge which often delays and sidetracks their emotional development.

In fact, a child who has endured an acrimonious separation of his or her parents may exhibit overt signs of maturity not as a natural inherent development but more akin to compensatory play-acting.

Rule #2: A Child's Views Ought Always to be Weighed

In my opinion, and contrary to some judges, the availability of the views of a child of the age of seven or older, ought always to be ascertained.

In many cases, if not most, especially with younger children, a child has no view or preference or sensing the import of his or her opinion, wisely abstains from voting.

But with older children, especially 10 or older, a discreet and low-pressure inquiry ought to be made with them by some disinterested party even if just to confirm their abstention. For a child to be subjected to a court decision as to where he or she should live, made without any attempt to consult with him or her, sends an inadvertent but potent patronizing message of judicial disrespect; a message about "justice" the child may later dangerously seek to return in self-destructive behaviour.

Two child witnesses had this to say to the Senate of Canada during hearings which culminated in the 1998 publication For The Sake Of The Children

  • "They think you are nine years old and you don't know anything. But it's your life."
  • "They're deciding your life and your future but they don't even know you."

A judge should always make some kind of inquiry to determine whether a particular child is of an age, circumstance and maturity level to give his or her views, and then to seek those views in a process which, to the extent possible, is emotionally safe for the child. Often, a child can see a trained social worker for precisely this inquiry.

Unfortunately, politicians continue to leave this area of family law leadership to the judges.

As a clear symbol of statutory deference, the Family Relations Act of British Columbia says, at ¶24, that in deciding custody issues (such as who a child lives with), "a court must ... consider ... if appropriate, the views of the child...."

S. 24 of Ontario's Children's Law Reform Act:

".... the child’s views and preferences, if they can reasonably be ascertained....."

Similarly, Alberta's Family Law Act, at ¶18 refers to:

"...  the child’s views and preferences, to the extent that it is appropriate to ascertain them...."

Guess who decides whether it is appropriate or not? The judge, often with none or dated parenting experience, and having never practised in family law.

The federal Divorce Act, at ¶16, entirely omits reference to this source of critical evidence saying only that:Child reading law book

"... the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child."

Article 12 of the UN Convention on the Rights of Children, which Canada ratified in December 1991, is unequivocal:

"States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

"For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child

Rule #3: The Older a Child, The More Weight to Give His/Her Views

As Ontario Justice Sortini said in the 1989 case of Taylor v Taylor:

"A child's wishes become increasingly more important as the child grows older and would, therefore, be given considerably more weight, the older the child."

Some of this is judicial response to a mature child but some of it is also the simple reality of dealing with teenagers. As Sortini added in Taylor:

"It is probably futile to ignore the wishes of an older child in his or her mid-teens, who is determined to live with a parent of his or her own choice."

Or as Justice Spence of the Ontario Superior Court noted in Goodman v Browne (2003):

"It has often been said that children 'vote with their feet'.... (A)n order forcing them to attend against their will would not be enforceable if the children simply refused to attend."

In fact (or perhaps the statement should be "in law"), most judges clunk their way through and make the right decision such that there is now a fairly strong body of law which, while stopping short of setting predictable and transparent guidelines which reflect the rights of children, are nonetheless of considerable assistance:

In Tapley v Tapley, Christopher Tapley was 15, prompting the Court to opine:

"(W)here, as with Christopher, a child is approaching the age of 16 years, the court should abide by his wishes and preferences unless there are serious reasons for doing otherwise...."

In O'Connell v. McIndoe, at ¶11, the British Columbia Court of Appeal had to consider the disconcerting case of a 14-year old boy, Craig  McIndoe who told the trial judge that he wanted to live with his father. The judge disagreed in order that he lived with his mother. Craig promptly ran away from his mother's home on five separate occasions four times requiring the intervention of the RCMP.

"Craig is too old to be forced to live with his mother. In order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child."

In Alexander v Alexander, at ¶12, that same court had to consider the case of Paul Alexander. A judge had ordered that Paul move and live with his father even though the 12-year old child expressed a desire to remain with his mother.

"(T)here does come a point when at near adult years a child capable of responsible thought must now be deemed to be able to settle his own future in this important matter. Concomitant with that he must take the responsibility for his own actions. I think that that point has now been reached.... It is not fair to push this boy to the point of rebellion...."

In Blair v Blair:

"(T)he court must give considerable weight to the wishes of a 14 year old boy. That is not to say, however, that his wishes are determinate of the issue. The court should consider the maturity of the child, the extent to which he has thought through his decision and the factors influencing it. Ultimately, the court, not the child, must make the decision as to his best interests."

The final decision should rest with the judge.

Consider the American case, out of Louisiana (Johnson v McCullough, 1982) where the father, in the days leading up to the hearing on a change of residence, bought his 13-year old son a horse, two television sets, a shotgun, a minibike and a private telephone. When the son's statement - that he now wanted to live with his father - was led as evidence, the Court saw through the father's ruse and denied the application.

Research and Further Reading: