La loi vos droits

Parents - Custody and access rights

Custody and the Child's Wishes

Things aren’t going well between you and your spouse, and you have decided to separate. Your children are both very unhappy, but each one reacts differently. Your eldest wants to live with you, while the youngest refuses to choose between his parents. You want to respect their wishes, but an agreement with your spouse is unlikely given the present tension between the two of you. Do you have to respect your children’s wishes? Will the court listen to what they want?

In this Infosheet, Éducaloi explains how the court responds to a child’s wishes, and how it goes about ensuring that a child’s wishes are compatible with his or her best interest.

How old does a child have to be in order to choose which parent will have custody?

There is no set age at which a child can decide which parent he prefers to live with.

Clearly, a very young child cannot make this decision and it is up to the adults or the court to decide. However, the court will consider the opinion of a child of about 8 years of age or older. The preference of a child over 12 years of age will be strongly considered and may even be determinative, depending on the circumstances.

Consider this example: David is 14 years old. His parents have been divorced for several years. They don’t speak to each other, but live in the same neighbourhood and share similar values. David has a room at each parent’s house and wants to spend half the time with his father and the other half with his mother; in other words, he wants custody to be shared. The court will certainly consider David’s opinion and may order shared custody, even if one of the parents disagrees.

Here is another example: 7-year-old Maude wants to live with her mother. During the custody hearing, the court realizes that Maude is afraid of losing her mother, who has been depressed since the break-up and is threatening to commit suicide if she loses custody of her daughter. The court will not consider Maude’s opinion, given her young age and the fact that her wishes are against her own best interest.

What can I do if my child wants to live with me but my ex-spouse disagrees?

First make sure that your child really wants to live with you for valid reasons and not on a whim, or for example, in reaction to a punishment recently imposed by the other parent.

You can consult a professional, such as a psychologist or a social worker, to help your child express herself and truly understand the consequences of her decision. This can be particularly helpful if your child seems uneasy about explaining the reason for her choice, perhaps because she doesn’t want to upset the other parent. It is a good idea to first get permission from your ex-spouse before taking this step.

You might also choose to enter family mediation. Depending on the child’s age, there is a strong possibility that the mediator will recommend that the child take part in the mediation.

Lastly, you will need to ask the court to grant you custody of your child. The court will homologate (approve) any agreement you may have reached with your spouse. This makes the agreement legally enforceable. If you and your ex-spouse have not made an agreement, there will be a hearing and the court will decide in the child’s interest.

Will my child have to appear in court to tell the judge what he wants?

A child has the right to be heard by the court in matters of custody and visitation.

Sometimes a child who is determined to live with one of his parents will insist on telling his wishes to the judge himself. The court must allow him to be heard. The child may be accompanied by a person to assist and reassure him. If it is in the child’s interest, the court can also decide to hear the child without the parents present.

Many parents are very uncomfortable with the thought of their child appearing in court. It may help to request that the child be represented by his own lawyer. We usually refer to this lawyer as the “children’s lawyer”. A child with the necessary capacity may even hire a lawyer himself. Where a child has his own lawyer this still won’t always prevent the child from testifying himself.

You can also have a psychosocial evaluation performed. This is when an expert chosen by one or both of the parents evaluates the overall situation. A psychologist is normally appointed for this task. The court may also seek an expert opinion if it feels this is needed under the circumstances, and if the parents agree. The expert writes a report once the assessment is finished and makes a recommendation. This often relieves the child from having to testify and helps the parents to reach an agreement. Where there is no agreement, the court will give a decision based on the expert opinion as well as all the other evidence, including the child’s testimony (where applicable).

What is the role of the lawyer appointed by the court to represent my child?

The main role of a child’s lawyer is to represent the child. She does not represent either of the parents. Nor is the child’s lawyer a type of mediator, although she can intervene in negotiations between the parents.

The court, not the child’s lawyer, will make the final decision if the parents are incapable of reaching an agreement. However, the court will certainly pay careful attention to the arguments made by the child’s lawyer.

If a child has the capacity to give a specific mandate (a client’s instructions to his lawyer), the lawyer must act within the limits of these instructions regardless of her personal opinion. She then represents the child as she would an adult, meaning she has the duty to advise the child and inform him of the consequences of his decision. As a general rule, a child 12 years of age and over is considered capable of giving a mandate to a lawyer.

A lawyer representing a very young child must defend both his rights and his best interest. She must ensure that all relevant information is submitted before the court. As is the case with an adult or an older child, the lawyer is bound by lawyer-client privilege. This means that conversations and other communication between the child and his lawyer are kept secret. Finally, she must inform the court of what she considers to be in the child’s best interest.

What can I do if I believe my ex-spouse is manipulating my child?

In some cases, a parent may use various means to try to convince a child to live with him or her.

The term “parental alienation syndrome” refers to extreme cases of manipulation, whereby one of the parents destroys the other’s image in the eyes of the child, to the point where the parent is alienated or even eliminated from the child’s life. This type of behaviour seriously affects the child who, in a serious conflict of loyalty, may adopt the alienating parent’s ideas. Do not hesitate to ask the court to address the situation as quickly as possible if you find yourself in this position; you may even be awarded custody of your child if he has been living with your ex-spouse.

Fortunately, extreme cases like the above are rare. Still, sometimes a parent will more or less consciously manipulate a child. Manipulation can take many forms:

• Frequent promises to the child;
  
  
• Numerous gifts and outings for no reason at all;
  
  
• Negative or critical innuendos about the other parent.

Consider the following example: Frederick is 10 years old and has been living with his mother since his parents separated. His father telephones him often to organize outings, even when he is supposed to be with his mother. His father tells him that it is his responsibility to obtain his mother’s consent, and when she refuses, for example, because she has planned a different activity, his father seems unhappy and criticizes his mother.

Try to talk to your ex-spouse if you are in a similar situation so he understands this behaviour is not good for your child. You can ask the court to intervene if things don’t improve. The court may order your ex-spouse to first get permission from you before planning any outing with the child that is to take place outside the visiting period that is already established.

Can the court separate children if my son wants to live with me, but my daughter wants to live with my ex-spouse?

As a general rule, it is preferable for children from the same family to remain together. But this rule is not absolute—the children’s interest may require that each child’s opinion be respected.

The court will assess each situation individually, as it does for all decisions affecting children. If it feels it is in the children’s interest, the court may award you custody of your son, and your ex-spouse custody of your daughter. In such instances, the court usually arranges for the children to spend alternate weekends and holidays together at the home of one of their parents.

What should I do if my child wants to try living with my ex-spouse, but is not certain that it will work out?

You don’t want your child to end up bouncing from one parent to the other according to whim, but you can let her try living with the other spouse, provided you take certain precautions.

You and your ex-spouse can agree on a pre-set trial period, for example, during one school semester, so that the child understands the seriousness of the decision. The change can become permanent if everything goes well.

If your spouse files a motion for a change in custody, you can ask the court to render an interim, or temporary, judgment for a given period. The court can then re-evaluate the situation later on.

Child support payments will normally be changed accordingly. Your spouse will no longer have to pay you because he will have custody of the child, and you will have to pay support instead.

What factors will the court consider aside from my child’s wishes?

What a child wants, even one older than 12, is not always in his interest. Therefore, the court will consider first and foremost the child’s interest when setting custody and visitation.

In addition to the child’s wishes, the court will take the following factors into account:

• The psychological relationship between the child and each parent;
  
  
• Parenting skills;
  
  
• What satisfies the child’s needs;
  
  
• A stable environment for the child;
  
  
• The availability of each parent;
  
  
• The desire to maintain a relationship between the child and the parent who doesn’t have custody;
  
  
• The physical and psychological health of each parent.

All of the above factors are equally important. The court will assess the situation as a whole and weigh the advantages and disadvantages of the various possible solutions.