Kids Don't Decide

There seems to be a belief that at age 12, a child “decides”, that is, they determine which parent they live with and when they see the other parent.

Our law is in fact quite different. A child’s wishes are one of many factors that our Courts use to decide custody and visitation between separated parents.  Courts decide according to a child’s “best interests”, which brings together a host of factors.  These variables include the child’s age and stage of development, the ability of each parent to meet the child’s physical and emotional needs, the ability to provide the child with guidance, the willingness of the parent to encourage contact between the child and the other parent, and any other special needs of the child or considerations.  The child’s wishes and preferences are also a factor, if they can be determined reliably.

The wishes of an infant or toddler cannot generally be determined and play little or no role in the determination of the child’s best interests. The wishes of a young child, if they can be reliably determined at all, play a relatively minor role.  As a child approaches ages 10 and up, we find  their wishes – if they are reliable and consistent —begin to play a significant role.  Once a child reaches teenage years, their wishes can be a determining factor.  In all cases, however, a Court must determine what is in their best interests, whether or not they dovetail with the child’s wishes.

Charles Morrison represents mothers and fathers who have separated or about to separate.  In addition, as a long-time panel member of the Ontario government agency known as the Office of the Children’s Lawyer, Charles represents children in court proceedings involving custody and access issues.