The principal concern in any custody dispute is ensuring that the best interests of the child/children remain the primary focus. However, it is often that the dispute remains unresolved because each respective parent maintains that they are the one to best provide for the child/children in light of these interests.
Although it is not the deciding factor, hearing a child’s perspective and opinion can be especially beneficial for the court, so that it provide the most suitable judgement for that child.
The Family Law Act in British Columbia supports this position in Section 37 where it contends that the “child’s views must be considered when establishing what is in his/her best interests”, provided that it is not unsuitable.
If a child is not of sufficient age or maturity to have a coherent conversation in which they are able to clearly express their desires, then it may not be suitable to consider his/her perspective.
At What Age Can Your Child Decide Which Parent to Live With?
Despite there being no concrete regulation that determines whether or not a child is of sufficient age or maturity, previous judgements show that courts are generally more likely to consider the perspective of a teenager compared to that of a younger child.
For example, it is uncommon for a court to review the opinion of a child who is younger than the age of 12. McGowan v. McGowan, 2001 BCSC 1070 is a good example of a case where the British Columbia Supreme Court placed greater weight on the views of the teenager concerned. The desires of the sibling, who was 11 years old at the time, were only considered as informative in the Court’s decision.
As mentioned above, there is no set age at which a child’s views will contribute to the final decision on where he or she will live. Each case is reliant on whether the child’s choice is consistent with their best interests. For example, in A.J.A v. F.M.A 2016 BCSC 1613, the judge opted to interview an 8-year-old about her outlook on a potential relocation.
Ways to Obtain Your Child’s Views
Determining what is best for the child/children is arguably the most challenging part of a judge’s position in custody disputes. This is why obtaining information from an impartial third party has proven most helpful in ascertaining what the child/children want.
A parent can, similarly, submit an application to the court if they want the judge to review and evaluate the child/children’s perspective.
There are several means in which a child’s views can be heard. These include:
- Hear the Child Reports;
- Views of the Child Reports;
- Section 211 Assessment Reports; and
- Judge interviews.
What Is the Difference Between the Reports?
A “Hear the Child Report” involves a neutral interviewer, usually a lawyer or mental health professional, who meets with the child to discern the child’s views. He or she will then compile a written report and provide this to the judge or mediator. The report is considered when the court is deciding the best ruling for the child/children concerned.
A ‘Views of the Child Report’ is most suited when the child’s well-being is in question. The report, which provides the child’s views and an assessment thereof, is compiled by either a social worker, counsellor, psychologist, or other mental health professional. These reports are often preferred over a Hear the Child Report.
A full ‘Section 211 Assessment Report’ involves an assessment of the child’s needs, views, as well as the will of the parents to fulfill the needs of their child. A counsellor, social worker, or psychologist will meet with the child as well as the parents and draw up a comprehensive report. This report is the most evaluative of the four as it seeks to determine whether what the child is saying truly reflects his/her preferences. It also incorporates suggestions in which the child’s best interests can be met, whereas the other reports merely provide a compilation of the child’s views and opinions on the matter.
Due to the more comprehensive nature of a s. 211 Assessment Report, it is generally more expensive and takes longer to complete. However, it could be the most suitable report in situations where the parents submit inconsistent evidence and it is necessary to obtain an unprejudiced view on each parent’s capabilities.
Finally, a “Judge Interview” involves a judge interviewing the child directly, in order to personally get a better understanding of the family circumstances. This is the least common of the options, and the judges generally decide to obtain a s.211 Report.
Ultimately, it is likely that a child’s views will have an effect on the concluding resolution, as they are usually most able to give insight into their best interests. Divorce can be a frustrating experience for a child and providing the child with an opportunity to have their voice heard tends to ensure that their best interests are prioritized.
As child custody disputes are sensitive in nature and often difficult to navigate through, be sure to consult with a lawyer on the best steps that can be taken for your specific situation.
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