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The Voice of the Child

Published: May 31, 2016

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The Voice of the Child

Legal professionals, judges and therapists have all contemplated on how to ascertain the views and preferences of children in custody and access disputes.  There are several ways that children’s views and preferences are engaged in the family law process. Children have testified in family court during a trial, have been interviewed by judges, have been represented by a Children’s Lawyer, have had a Child Therapist testify or write a report on their behalf, or have been interviewed by a child specialist in mediation or collaborative law. All of these processes have highlighted the importance of children being part of the separation and providing their perspective of what they are experiencing.  It is important to understand that children are living and breathing this conflict and have the right to be heard.  However, the more pertinent question is how influential are their views and preferences in shaping a decision.

I believe we have tread cautiously in how much weight we give to these children.  The level of conflict between the parents is often a good indicator to evaluate before developing a parenting plan or making a decision which is consistent with the children’s views and preferences.

As a Child and Family Therapist and Custody and Access Assessor in private practice, I have noticed that when children are given too much weight in the custody and access process they can develop an artificial sense of power over one parent or even both.  This can be harmful.  For example, children are more often being given a choice of whether or not they should attend an access visit with a parent. Children with this type of choice may deny or restrict a visit with a parent as a result of a minor disagreement. They may also only agree to a visit with an access parent based on some sort of personal gain, like the parent agreeing to buy the child toys or saying yes to junk food and video games. In some of these situations, an access parent can be easily stripped of their parenting authority if they say no to their child. Typical parenting requests such as “clean your room” or “do your homework” are met with refusal and sometimes threats from these children with this artificial sense of power.

In high conflict situations the primary parent may intervene and interrogate the child to report back to them about the visit. Discipline and parenting may be inflated into mistreatment of the child and based on this misconception access gets limited and in some cases terminated. This is a common theme happening in high conflict custody and access disputes.  As the power imbalance continues, children start rejecting the relationship with their access parent if they are given too much of a voice/power. This can be quite detrimental and damaging to the relationship between the parent and the child.

If you want your children to adjust better in separation and divorce, allow your children’s views and preferences to be influential and shape decisions when they are being communicated out of love and respect for their parents.  Most children’s wishes are to maintain a close, loving relationship with both their parents and we need to keep in mind they can sometimes be reared away from that position in high conflict situations.

Getting children out of the cross fire is sometimes not allowing children to be engaged in the family law processes and having them step back and allow the adults to decide what is best.

Joanna Seidel has been counselling individuals, families and children and has helped couples re-connect for over a decade. She is a Child and Family Therapist and specializes in separation and divorce. She has worked with families and children, helping them manage the often difficult, stressful and emotional process of separation and divorce. Joanna provides counselling to address a wide range of needs: Separation and Divorce, Marriage Counselling, Parenting Conflict Resolution, Stress, Anxiety, Depression, Anger Management, Grief and Loss, Work-related Stressors, Domestic Violence, Alcohol, and Substance Abuse.

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - child custody & access

It is not uncommon for someone to want to relocate after a divorce. If you still live in the marital residence, the familiar surroundings and memories may be too much for your heart to handle. Or in the process of reinventing yourself post-divorce you may want to take a new job, move closer to your friends and family, or simply wish to start fresh somewhere new. There are many reasons a person may want to move after going through a divorce, however if you have children you will need to think twice before making a big move.

Emotionally, it can be challenging for a child to move to an unfamiliar place. Often, they are most at ease in a familiar environment with access to family and friends. Changing schools, living in a new city or even a new house can be difficult on a child, especially after dealing with the emotional turmoil associated with divorce.

Legally, there are certain implications to relocating away from the current jurisdiction where the children ordinarily reside. Before moving you and the noncustodial parent can negotiate with the absence of a lawyer, a written agreement about the moce and any changes to visitation that may be needed. If you cannot reach an agreement about the move, you then must file an Application/Motion to the court to hear your matter and for a judge to make a decision before you move. Usually the court requires at least 30 days notice to the other parent of your court Application/Motion. It may take longer to reach an agreement with the other parent or get a court order. It is a good idea to give notice of 90 days before the move, as as soon as possible and to consult with a lawyer first. Upon receiving this notice, they can challenge your proposed change of residence or apply for a variation to the existing custody or access orders.

The leading case that sets out the legal test in determining mobility is Gordon vs. Goertz (1996) 2. S.C.R. 27

Similar to any other action involving variation of an existing custody order, the person challenging the relocation has to show that the move will result in a material change in circumstances affecting the child. Once this has been established, a judge will determine the best interests of the child in light of the relevant circumstances. These relevant circumstances include the existing custody and access relationship, the relationship between the child and the custodial parent, the views of the child, and the reason for the proposed change of residence among other circumstances. As with every other custody proceeding, the judges determination will turn on the best interests of the child. The judge’s inquiry is individualized and will involve all factors relevant to the case at hand.

Because mobility has become so easy in today’s society, often separation agreements or custody orders will address relocation and place specific restrictions on changing residences. Non-removal clauses that ban the extra-provincial removal of children without consent of the noncustodial parent. In these cases, the custodial parent who wishes to relocate will have to initiate the action by placing an application with the court.

If you are contemplating a move, you must consider the emotional needs of your child, as well as your former spouse’s right to challenge your relocation. Typically, courts only allow a custodial parent to relocate if the proposed move is in good faith and not intended to frustrate the noncustodial parent’s relationship with the child. Additionally, if a custodial parent relocates, they must be willing to accommodate the noncustodial parent’s access to the child; sometimes this means that the relocating parent will have to pay the additional costs of access.

In sum, if you are a custodial parent, moving isn’t as easy as just loading up the car and hitting the road – but it is still possible.

Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:

  • Act of birth
  • Presumption of paternity
  • Uninterrupted possession of status
  • Voluntary declaration

No. Even when the parents are unmarried, divorced, or separated, one parent cannot keep the child from seeing the other unless the court deems it appropriate to the child’s best interests.

Historically, mothers have been more likely to get sole custody of their child in both consent and contested orders, as they are usually the child’s primary caregiver. However, as more mothers also work outside the home, courts could also rule in favor of the father.

The majority of judges strive to make decisions that are in your children’s best interest. Giving full custody to one parent is usually the best option, except in cases with concerns such as child or substance abuse. This typically means keeping in contact with and maintaining relationships with both parents.
You should do everything possible to prepare for the subsequent child custody negotiations, whether you’re a parent seeking full custody or shared custody:
Be honest with yourself about your ability to manage things alone, in terms of practicality, finances, and other factors. You may get the result you want by presenting the strongest case for custody by doing the following:

  • Make a Strategy: If custody is granted, a court will expect you to be ready. Compile thoughtful replies to hypothetical queries posed in court.
  • Speak with people who have gone through the child custody procedure before you. They may provide you advice and tell you what to anticipate.
  • Judges look for proof of a meaningful relationship in addition to making sure you can provide a child’s practical and basic needs. Simply put, be involved in your children’s lives.
  • Continue to pay child support regularly, whether you’re asking the court for full or shared custody. When you start the procedure, you’ll want to make sure you have a strong track record.
  • Keep a detailed log of your visitation schedule. This is a crucial aspect of obtaining child custody. Visitation records reflect how often you see your children under the present arrangements and your dependability, as well as dedication to them.
  • During all child custody hearings, the court will inquire about acceptable living accommodations. Even if you live in a tiny apartment, you should create a unique and secure environment for your child.
  • Courts may determine child custody in part by how you treat your child’s other parent. Being hostile or unpleasant to the other parent makes collaborative decision-making more complicated and can break apart parent-child ties. As a result, judges are more inclined to favor the parent who isn’t behaving badly.
  • While parents typically spend a lot of time thinking about what they believe is best for their children, children’s perspectives are sometimes overlooked. The court will be interested in learning what the children desire and will most likely question them directly at some point throughout the proceedings. You can better inform your decision-making by asking your child what they think.

No. Parenting time and child support are different from each other. While it is a child’s right to be provided with financial support, it is also their right to spend time with their parents. Thus, even if the child support was cancelled the parent formerly supporting can still enjoy parenting time with the child.

“There is no fixed age for when a child can say which parent they want to live with after a divorce. However, by law, a child must be 16 years old to decide on this matter. The exception to this is when there is a court order stating that a child/ren must live with one parent until they turn 17 or 18.

Under certain circumstances, it is possible to legally prevent your child/ren’s father from seeing or contacting them. It may be necessary if he presents a potential danger to your child/ren. If you were never married to the father of your child and there is no court order saying otherwise, you can do anything you want until paternity is confirmed.

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