The Rural Voice, 1998-02, Page 16Agrilaw
Children's wishes and custody
By Michael E. McGarry
There appears to be a perception in
society that once a child turnsl2, he or
she has the "right" to leave the
custodial parent and go and live with
the access parent. I am often asked
whether this is so and whether there is
a legal age at which a child can
determine where he or she wants to
live. Mostly the question comes from
non-custodial parents who are hearing
from a child living with the other
parent that he or she wants to come
and live with the non-custodial parent
(as it usually is).
The answer to this question is that
there is in fact no legal age at which a
child can determine where he or she
wants to live and to change residence.
It has to be pointed out that court
orders dealing with custody and access
are orders binding on the parents with
regard to what they can or cannot do
with the children. However, it is not
binding on the child in the sense that if
the child refuses to live at the home
where he or she has been living as a
result of a court order giving custody
to that parent, the child does not
breach a court order by refusing to
remain with that parent. Children can
in fact "vote with their feet" by simply
moving to the other parent, or leaving
home. It then
becomes a
question of to
what extent the
parent can
continue to
control that child
and impose rules
upon the child.
In intact
marriages as in
separate families,
there are conflicts
between parents
and children,
which, especially
in teenage years,
can be very
disruptive and tension creating. One of
the few advantages for a child of a
separated family experiencing such
There is no
legal age for
children to
decide their
place of
residence
12 THE RURAL VOICE
conflict is that the child can leave the
parent who he or she is in conflict with
and go and live with the other parent
to escape that conflict. In intact
marriages, usually the child's only
choice is to find another home or take
to the streets, both alternatives that
most children back away from.
A court hearing an application from
one of the parents to change the
custody arrangement because of the
child's stated preference to live with
the other parent will give more weight
to the child's wishes the older the child
is. With children age five or six or
under, a court will give almost no
weight to their preference; about nine
or 10 years of age minimal weight, and
over 10, increasing the weight. One of
the critical issues will be how the
child's wishes are to be determined
and whether there is undue influence
or pressure coming from one of the
parents. The court will often appoint a
lawyer for the child in these
circumstances to provide unbiased
input as to the child's real wishes and
needs.
Unless the parents can agree to
make a change to the court order on
their own, the only remedy for the
non-custodial parent who is being
pressured by the child to change
residence, is to bring the matter before
the court, and ask the court to hear the
evidence and make a determination.
This can be a costly exercise both
emotionally and financially and one
that should not be embarked upon
except with a very clear understanding
of what the child's difficulties are and
whether in fact the child is trying to
escape certain behaviour or simply
refusing to follow rules. The non-
custodial parent who is in line for
becoming the custodial parent should
make it very clear to the child that if
he or she chooses to change residence
that it will not be on the basis that
there will be a return to the previous
parent if things don't work out or the
child does not follow the rules of the
second home. That becomes simply a
situation of manipulation of the child
who can play one parent off against
the other to achieve his or her own
ends. If there is to be a change of
residence by the child at the child's
request, it should be done on the basis
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12 THE RURAL VOICE
conflict is that the child can leave the
parent who he or she is in conflict with
and go and live with the other parent
to escape that conflict. In intact
marriages, usually the child's only
choice is to find another home or take
to the streets, both alternatives that
most children back away from.
A court hearing an application from
one of the parents to change the
custody arrangement because of the
child's stated preference to live with
the other parent will give more weight
to the child's wishes the older the child
is. With children age five or six or
under, a court will give almost no
weight to their preference; about nine
or 10 years of age minimal weight, and
over 10, increasing the weight. One of
the critical issues will be how the
child's wishes are to be determined
and whether there is undue influence
or pressure coming from one of the
parents. The court will often appoint a
lawyer for the child in these
circumstances to provide unbiased
input as to the child's real wishes and
needs.
Unless the parents can agree to
make a change to the court order on
their own, the only remedy for the
non-custodial parent who is being
pressured by the child to change
residence, is to bring the matter before
the court, and ask the court to hear the
evidence and make a determination.
This can be a costly exercise both
emotionally and financially and one
that should not be embarked upon
except with a very clear understanding
of what the child's difficulties are and
whether in fact the child is trying to
escape certain behaviour or simply
refusing to follow rules. The non-
custodial parent who is in line for
becoming the custodial parent should
make it very clear to the child that if
he or she chooses to change residence
that it will not be on the basis that
there will be a return to the previous
parent if things don't work out or the
child does not follow the rules of the
second home. That becomes simply a
situation of manipulation of the child
who can play one parent off against
the other to achieve his or her own
ends. If there is to be a change of
residence by the child at the child's
request, it should be done on the basis