Does my child get to live where he wants?
Depending on both the quality of your family relationships and the degree of court or other third-party involvement with your marital separation, the complicated answers to that straightforward question can be “yes” or “not necessarily”.
When is the answer “yes, the child gets to decide”?
In effect, the child gets to “decide” if all involved decision makers — that is, the significant adults in the child’s life — are in agreement about the child’s future living arrangements and that agreement meshes with the child’s own wishes.
In fact, joint agreement is the most common way for resolving a child’s custody. This is probably the most frequent outcome because a child may clearly appear to need to be more bonded to one person and/or place at any particular period in the child’s life and because most parents share a common perception of their child’s needs.
Thus, even very young children unable to verbalize a preference for their primary living arrangements often exhibit, through their conduct, a greater affinity to one or another caretaker and/or to one or another living situation (i.e. proximity to particular neighbourhoods, day care environments, or to already developed friendships). And the important people in the child’s life recognize the child’s expression of its needs and act accordingly.
This ability, that most parents possess, to recognize — and satisfy by mutual agreement — their child’s basic needs for a “best fit” living arrangement persists over the entire period of the child’s minority; and it is a flexible recognition, ready to change the child’s home as the child’s needs change.
For example, a child’s needs may dictate staying with dad from ages 4 to 10; but, if needs begin to change toward the end of elementary school, mom and dad can often agree to modify physical custody to suit the child’s changing needs. A later alteration in living arrangements may occur — and frequently does — in the face of the child’s insistence that “it’s time you let me go live with mom [or dad].” As long as everyone continues to agree, the child’s preferences can be respected.
When is the answer “the child does not necessarily get to decide”?
The child does not necessarily get to decide where s/he lives, if either you or your spouse disagrees strongly enough with your child’s wishes. “Strongly enough” means that you move outside the immediate family to resolve a dispute over living arrangements, regardless of the child’s preference exhibited by behaviour or words.
Typically, this move is to family court, where the issue gets decided by a judge. But parties are increasingly using mediation, and arbitration, as a means of resolving custodial disputes. A mediator or arbitrator will attempt to ascertain a common meeting ground between you and your spouse as to the weight to be given to your child’s wishes, because a mediator will endeavor to facilitate everyone’s agreement over the best physical arrangements for the child.
In court, the situation is similar, but not the same. The law in Ontario tells the judge that the child’s preference is but one of a number of factors to consider in his or her judgment. Therefore, like you and your spouse in mediation, a judge is free to give the child’s wishes (if known to the judge) as much or as little weight as he or she deems appropriate. The difference between a court’s resolution and a mediator’s resolution is that the judge is not in the business of facilitating agreement between the parents. The judge’s entire task is to determine what appears to be in the child’s best interests.
A judge’s decision about the child’s best interests can be shockingly different from the child’s own view of those best interests, let alone the parents’ views. Judges consider a host of factors in custody cases, including parental capacity for affection, modeling and steadiness, a parent’s physical and mental health, sensitivity to a child’s needs and ability to act on those needs, and the nature of one parent’s relationship to the child’s other parent. The judge’s analysis and weighting of such factors have no necessary or predictable interface with the child’s expressed preferences.
The child’s preference may carry greater weight if the child appears to the judge to be mature enough to understand his situation, although many child psychologists as well as judges take the position that no child should be asked to make a choice between parents. The judge’s potential disregard for a child’s wishes is all the more likely when the judge suspects, rightly or wrongly, that a child’s preference is being articulated under direct pressure from one parent. In such cases of suspected “parental alienation”, the judge may request additional psychological data regarding the child in an attempt to discern the child’s less conscious (and more genuine) wishes.
Family law judges tend to give more heed to a child’s wishes as the child becomes older, and hence more mature and more able to evaluate relationship issues and psychological needs. Judges also realize that most children of 14, 15 and 16 have an increasing ability to signal their displeasure over unsuitable living arrangements by acting out and even running away. From experience, judges have learned that they can order a 15-year-old girl to live with her mother, but that the girl who hates her mother will show up on her father’s doorstep the very next day and on any other day after she is returned to her mother.
To sum up the situation of a child’s physical custody, the court’s legal conclusions about where a child should live must be guided by the best interests standard. And, technically, only where a judge perceives the child’s best interests to overlap the child’s own preferences will those preferences be honoured. But it is more, rather than less, likely, that a child’s preferences will carry greater and greater weight as the child grows older, provided the child’s wishes appear to be well-founded and genuine.
