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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 LYONS FINANCIAL Offering insurance as well as an internationally Retirement 'l _ iil ' & MULHERN SERVICES LTD. and investment planning recognized Planning Program. "A conservative approach to a secure retirement" ••� - 404' . FL11A11CIAL STRATEGIES — — SCCCESSFU REI'IRE,NEVTh DEAN WHALEN, B.A. DENNIS DRENNAN Insurance and Investment Planning Financial Strategies for Successful Retirement 48 West Street (519) 524-5222 Goderich, ON, N7A 2K3 Call Collect 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