At 12-year old, my child is old enough to choose where he wants to live!

Jack is a bit annoyed with Jill.  She now believes that she should have sole custody of the children although she was always the first one to tell family and friends that her husband was the best father and that the children loved him very much.  Jack knows that he is able to care for the children in his own way.  His parenting skills are different from Jill’s and while the children need their mother very much, they also need him too.  The children are not little kids now, they are 10 (Adam) and 3 (Eva).  Adam has expressed his wish to spend his time equally with both parents.   Jack was advised by some of his friends (who went through a separation not too long ago) that at 12 years old, Adam can chose where he wants to live.  While Eva is too young to make that decision for herself,  Jack was told  that courts rarely separate sisters and brothers and since Adam is clear about his preference,  Jack feels confident that the custody issue will go his way. 

There is a very wide-spread myth that once children are 12 years old, they can decide for themselves with which parent they will live.  Let’s make one thing very clear: there is NO such principle in Canadian law.  This is just another example of why you need to make sure that you obtain sound and reliable information about your separation and divorce issues.   What the law really says is that the wishes and preferences of children is one of many factors that need to be considered by a court when making a decision about the care and custody of children.  Of course, the older the children are, the more weight their wishes and preferences will be given by the court.  As you can appreciate, the older the children,   the more outspoken they become about their wishes and preferences.   Also, older children often go where their feet go and it will be more and more difficult to impose upon them living arrangements that they disagree with.

When older children are caught up in custody disputes, a lawyer can (and will very often) be appointed by the court to represent the children to ensure that their wishes and preferences are heard and shared with the judge.  However, when rendering a decision, courts will consider several factors and the children’s wishes and preferences will only be one of them, although it will take more precedence as the children’s age and level of maturity increase.   Courts want to ascertain that the children’s wishes and preferences are based on valid reasons such as they feel closer to one parent or because they have a well-established routine with one parent and not with the other.   However, if the children’s reasons are they they are free to do as they please while in the care of the “preferred” parent (who may often be the less disciplinary parent), including missing school and adopting delinquent behaviours, then courts will not give much weight to their wishes and preferences no matter how old they might be.

I want sole custody of my children!

Jill has made up her mind.  She wants sole custody of the children!  She is moving into a new home and the kids are coming with her, whether Jack likes it or not. Although, Jill knows that it is important for the children to continue to have a healthy relationship with their father and to spend time with him, something she is more than prepared to accommodate, she feels that it is in the children’s best interest to live with her permanently.  After all, she has always been primarily responsible for all of their needs, organizing and attending doctors’ appointments, parent-teacher meetings, and activities, getting them ready for school, doing their homework, and so on.  Jack seems to think that they would have joint custody of the children but Jill disagrees.  She will not spend a whole week without her children because they are still too young, and a week on/week off schedule will be too disruptive for their routine. After all, it’s Jack who wanted to end this marriage, not her, and she won’t live without her kids!

When discussing a parenting plan with an ex-spouse, many people misuse some of the legal terminology which often leads to disputes where there is really none. That is because the term “custody” is used to express two completely different things.   The first one refers to the decision-making process and the other refers to the time-sharing arrangements. However, most people understand the concept of “joint custody” to mean that the children spend an equal amount of time with each parent, which is not necessarily so.  In fact, the term “custody”, legally speaking, refers to who will be responsible to make the day-to-day decisions about the children such as:  Where will the children live?  In what school are they going to go?  What religion will they practice, if any?  What activities will they be engaged in?  Having joint custody of the children means that both parents are making those decisions together.   Having sole custody of the children means that only one parent can make those decisions, without having to consult the other parent.  Our courts now also recognize the concepts of split custody and parallel parenting, the former referring to a situation where each parent has sole custody of one or more children and the later referring to each parent having exclusive decision-making authority on one or more aspects of the children’s upbringing (for instance the father makes all decisions about all the children on educational matters and the mother makes all of the decisions about all of the children on health and religious matters). 

The term “access” refers to how the children’s time will be divided between the parents. The expression shared custody is often used by parents and lawyers (although it is not a term used in the legislation) to describe a situation where the children spend an equal amount of time with each of their parents.  Both parents normally want to continue to be equally involved in the lives of their children and therefore agreeing on these difficult topics is not always easy. To avoid unnecessary disputes, it is important for you and your former spouse to understand and express clearly what you have in mind when using these terms.  I have seen parents taking strict positions against a request for “joint custody” not understanding that the other parent did not really want to have the children in his or her care half the time, but only wanted to continue to be involved in the decision-making aspects of the children’s upbringing.