“Billy has decided not to live with his Dad.”

“I’m not sending Suzy for access anymore. She doesn’t want to go to her Mom’s.”

I frequently hear comments such as these when speaking with clients about their children’s living arrangements after separation.

And when I do, I am faced with these questions:

  • Can a child choose where he lives after separation?
  • Can a child set the schedule for access?
  • What if they won’t go to the other parent?
  • Is there a magic age at which a child can decide which parents to live with?
  • Is there an age when a child can refuse to go see their father or mother?

Despite the ending of their marriage, parents need to continue to parent their children together. (That is unless one parent cannot care for their child for reasons such as family violence or addiction issues.) Collaborative parenting includes making important decisions in tandem regarding their children’s well-being, including decisions about their living arrangements and schedules. It is crucially important to help parents focus on finding a cooperative solution to these issues.

The best plans for children post-separation are most often the ones jointly created by the parents, who best know their children. Getting on the same page regarding major parenting issues for the sake of the children (even if you agree on nothing else) can make a huge difference on the emotional well-being of a child after parents separate.

Children should not be asked to decide where they want to live; nor should they become responsible for making decisions around scheduling family time post-separation. Parents should treat these issues like they treat decisions about whether their children should attend school; it’s just something that a child should not decide! You might want to have open discussion about how the child may feel about school, but the decision itself should be an adult one. The same can be said about decisions regarding a child’s residence and the organization of a child’s time with parents after the family separates.

Legally speaking, children cannot choose which parent they want to live with, or want to stop seeing. When parents seek the Court’s assistance to determine this, the legal test is ‘what is in the child’s best interests’. In determining best interests, judges must consider a number of factors, one of which is the child’s views and preferences. Children can be canvassed regarding their wishes around these issues, but they are not asked to choose. Their view is only one of several factors the court considers.

Most parents are looking for an exact age at which child can chose. There is no set age in law, however the older the child the more weight his or her opinion will be given regarding their residence and access schedules.

In looking at the case law, the wishes of children fourteen and over are normally determinative in child custody disputes. This is primarily because at that age, if a child does not like things, he or she can simply hop on a bus and go to the other parent’s home. It is unlikely that a judge would order a teen to see a parent, or order a fourteen year old to adhere to a particular schedule of access against his or her wishes.

While a fourteen year-old child is the more likely to be listened to when expressing his or her wishes, a child’s emotional and intellectual sophistication may also come into play when a judge hears the child’s views and preferences.

A child’s living arrangements are never carved in stone, and children can change their minds like we change the channels…so, if Billy’s not going to go to Dad’s, listen to what Billy has to say about the issue. Tell him you will consider what he has said and that you and Dad will talk about it. This reinforces to the child that, even though you are separated, you will continue to respect one another as parents, will share parental responsibility and will not give over parental decisions to the children.