Many of the rules that govern family law in Canada are designed with the health and welfare of the child in mind. During long and emotionally overwhelming child custody disputes, it’s often suggested the child should have more of a say in the outcome. Unfortunately, the reality is not that simple.
Deciding Custody of a Child
The first step in deciding custody of a child is for the parents to settle the matter themselves, away from the judgement of the courts. If this isn’t possible, they must navigate the legal system, asking a judge or arbitrator to make the decision for them.
The judge or arbitrator has no lens in the complex history of the family in question. They’re under pressure to figure out what’s best for the child within a tight timeframe. Surely, asking the child at this point would be the best course of action? Let’s examine how the process works.
Having the Child’s Wishes Heard in a Custody Case
While all children are equal, their testimony isn’t. The weighting given to their views depends on their age and their level of maturity. Unfortunately, there are no concrete rules in this area. We can only look to precedent for loose guidelines.
For the purpose of this exercise, lets consider young children as those from speaking age up to eight. It’s likely the wishes of these children will carry little to no weight in the eyes of the law as they aren’t considered old or mature enough to know what’s in their best interests.
Children Aged 8-12
Children in this age group may have their views considered, but it’s likely they will only play a small role in the decision of the courts. These children are still viewed as too young and immature to control their own living arrangements.
Unsurprisingly, this group’s opinion carries the most weight in BC law. The judge will usually ask what they would prefer, trusting they are old enough to make the decision in their best interests. The sometimes-rebellious nature of teenagers will also play into this decision. After all, a judge will be eager not to make a teenager do something they could rebel against, causing even more harm.
How to Have the Child’s Wishes Heard
If you’re involved in a child custody proceeding and you’d like your child’s voice to be heard, there are several mechanisms for achieving this objective.
- Views of the Child Reports: The child meets with a psychologist or counselor and is interviewed about their future. These professionals file the report with the court, which is then factored into the judge’s decision.
- Hear the Child Reports: A less formal version of the above report, certified professionals such as family lawyers, psychologists or counselors can administer these reports.
- S.211 Reports: A comprehensive report carried out by a psychologist or counselor. Interviews are performed with parents, references, children and others to establish the best parenting arrangements for the child.
- Judge Interview: In rare cases, the judge can interview the child directly to establish their wishes. Usually, the above reports are preferred to this course of action.
- Child Submits an Affidavit: Older children can write an affidavit themselves in an attempt to sway the judge’s decision. Again, these are rare occurrences.
Get in Touch
If you have questions or concerns about child custody and parenting time, contact us today to speak with a lawyer. We are hard at work to ensure you and your child’s best interests are safeguarded during this stressful time.