Children’s Views In Custody Cases: Are They Considered?

There seems to be a common misconception that at some magic age, the important decision as to which parent to live with can be placed on the shoulders of a child.  This is not the law or the practice adopted by the Courts in BC.

In custody cases, the Courts are required to determine what is in the child’s best interests and, in so doing, the applicable legislation places a positive duty on the Courts to attempt to maximize a child’s contact with each parent to the extent that is consistent with their best interests. One factor that the Court will consider is whether the preferred parent has demonstrated a willingness to facilitate the child’s access with the other parent. 

With older children, it is important to allow them to feel that their views are being heard but to do so in a healthy manner that does not place them in the middle of the litigation or require them to choose between their parents.  When a child’s views are considered, the Courts will consider them critically to determine why the child expressed a particular view and whether their best interest can be met with the arrangement they suggest.  The Courts will be more likely to follow the child’s views in cases where there is no indication of alienating behavior by the preferred parent, if their views involve maintaining a relationship with both parents and if the child has maintained their view over a significant period of time.  Further, the older the child, the more their wishes will be considered.  Any perceived behaviour by a parent to alienate the child from the other parent will not be considered lightly and may have a profound impact on the outcome of the Court’s decision. 

Research has proven that children often give different messages to each parent about who they want to live with based on what they think that parent wants to hear.  This may occur for a number of reasons including the particular child’s tendency to attempt to please their parents or in order to pacify their parents whom the children can sense are in the midst of conflict. The end result is that both parents may be receiving very different messages, perhaps the complete opposite message as to who their child wants to live with. In all but the most extreme cases, the true message is most likely that the child wants to live with, or at least have frequent contact with, each parent and, whether the parents want to believe it or not, this is almost always in the child’s best interest.

It is understandable that it is difficult for parents to have to let go of their children and “share” them with another parent. Yet blended families have almost become the norm these days and children adapt remarkably well.  What is crucial is that they have two parents who love them and who are able to recognize the importance of the child’s relationship with the other parent.  As a family law practitioner, I encourage all parents to take a step back, put their own feelings aside and do everything they can to encourage their children to have a meaningful relationship with the other parent.  Your children will notice, and greatly appreciate, your efforts.  A small step, such as helping your children to make a mothers’ day or fathers’ day card for their other parent, can go a long way to improving your child’s overall well-being as well as your own relationship with your child as well.  

If you would like to discuss this or any other family law matter further, please do not hesitate to contact Ashleigh Baylis at baylis@pushormitchell.com.