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.