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Can your child decide which parent will have custody?

Perhaps one of the most painful decisions you have made is the one to end your marriage. Undoubtedly, you sought counsel from many sources before determining that divorce is the best solution. However, this one decision opens the way for many more questions you must answer, including those involving property division, debt division and child custody.

Ontario laws are slowly changing, and it is no longer a given that family courts will order custody solely to the mother. In fact, it is more likely that the courts will make every effort to provide a balance of custody between both parents since this arrangement is often more beneficial for the child. This can make child custody issues much more complicated, and you may be like many parents who consider allowing the child to make the decision.

Whom do you want to live with?

Until a child is 16 or older, the court is not likely to allow him or her to make the decision about which parent to live with. In fact, child advocates suggest that placing the child in the difficult position of choosing one parent over the other can have a negative impact on the child, especially if the parents are competing for the child's favour or pressuring the child to make a choice.

Of course, if your child is older and has definite opinions about the situation, the judge may wish to hear from him or her. The judge may want to obtain the child's testimony as delicately as possible and may take these following steps:

  • Requesting the involvement of the Office of the Children's Lawyer to independently assess the best interests of the child
  • Having a private meeting with the child in the judge's office
  • Requesting that a social worker meet with the child and prepare a report to the court

You may not wish to turn over this very delicate matter to a judge, but it is important to understand that your child may not be able to give you a definitive answer because he or she is unwilling to disappoint or upset either parent. Rather than asking the child to choose between parents, you may find an older child is willing to share his or her scheduling preferences as they relate to school, friends and other activities.

However, your child may find it difficult to discuss the matter with you and your spouse. Child advocates do not recommend bringing other family members into the discussion as this may add more confusion for the child. You may wish to call upon other resources, such as a teacher, doctor, minister or family law professional.

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