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Can my child decide who they want to live with?

Generally a child cannot decide which parent they want to live with.

But as a child gets closer to the age of majority, which is 18 years old in Ontario, they have more say about where and with whom they live. And it is rare for a court to make a custody and access order about a child who is 16 years old or older.

It's important never to pressure or try to convince your child to live with you. Children should be kept out of the conflict between the adults as much as possible.

There are times, however, when a child has very strong views of their own about who they want to live with. If your child is older and emotionally mature and able to give their views and wishes freely, you can talk to them about their choices.

If you go to court, the judge uses a legal test called the best interests of the child to make decisions about custody, access, and parenting arrangements.

One of the things the judge can look at is the views and wishes of the child. Usually, the older and more emotionally mature the child is, the more the child's wishes are taken into account.

If the judge needs the testimony of the child or evidence of the child's views and wishes to help them decide, the judge can:

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1. Talk to your child

It's important never to pressure or try to convince your child to live with you. Children should be kept out of the conflict between the adults as much as possible.

Since children usually do not want to hurt or disappoint a parent, it can be difficult for a child to tell a parent that they would prefer to live with the other parent. But, there are times when a child has very strong views of their own about who they want to live with.

If your child is older and emotionally mature, you can ask them what they want. If you think they are able to give their views and wishes freely, you can discuss their choices with them. For example, what access schedule they want and who they want making decisions for them.

As children get older, they often want to spend more time with their friends. It makes things easier for your child if you can be flexible and work with their plans.

Listen to your child's reasons. Don't make them feel like they are taking sides in the conflict or choosing one parent over the other.

If your child finds it difficult to speak to you about their views and wishes, let them know they can speak with someone they trust to get help talking to you. Some of the people they can speak with are:

  • a teacher or school counsellor
  • a social worker or therapist
  • their doctor
  • a religious leader

Try not to get family members involved when talking to your child about their preferences. This often leads to more problems or conflict. You and your partner may have an easier time hearing from a neutral, third-party about your child's views and wishes.

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2. Talk to your partner

You and your partner can try to agree on custody, access, and parenting arrangements without going to court. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

Some of the things you have to decide on are:

  • how holidays and special occasions like birthdays are shared
  • how to discuss things to avoid conflicts
  • how often your child communicates with each of you, whether by telephone, email, skype, or text
  • who is responsible for picking up and dropping off your child between each of your homes
  • the place your child is picked up or dropped off, such as each of your homes, your child’s school or daycare, a relative’s home, or a public place
  • how changes to the access schedule are made
  • how to deal with changes in the future

If you agree on issues related to your children, you can make a parenting plan. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement.

Your parenting plan or separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

Talking to your partner may not be an option where there is a history of partner abuse. 

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3. Get help from a family law professional

If you and your partner cannot agree on custody and access, you can try getting help from a family law professional. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law

All of these processes are sometimes called alternative dispute resolution (ADR). They help solve your issues without going to court. Deciding which process is best for you depends on the facts of your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.

Some of the reasons to use ADR instead of going to court are:

  • You have more control over what happens to your case.
  • It can be faster and cheaper.
  • It can be less stressful.
  • It takes place in a private setting.

But, there are some situations where it may be better not to use ADR, such as:

  • There is a history of family violence, mental illness, or drug abuse.
  • You can't talk to your partner.
  • You can't work cooperatively with your partner.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on each person's income. You can use this service whether or not you're in court. If you're already in court, you can get up to 2 hours of mediation at the court free of charge.

In some areas, Legal Aid Ontario has a mediation service that is free if you or your partner's income is low enough. These mediators help with issues of custody, access, parenting plans, travel and vacation plans, parent communication, and child support.

You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.

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4. Go to court

If you and your partner still cannot agree on custody and access or whether your child's wishes should be followed, even with the help of a family law professional, or if this is not the right option for you, one of you will have to start a family law court case.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues. This family law court process flowchart explains each step in a family law court case.

A judge looks at the facts of your situation and the best interests of the child test to make decisions about custody, access, and parenting. Judges usually assume it’s better for a child to have a relationship with both parents after they separate or divorce.

Judges generally don't let children testify in court because they know this can be a scary experience for a child. It can also be very difficult for a child, especially if they are forced to testify against one parent.

If the judge needs the testimony of the child or evidence of the child’s views and wishes to help them decide, the judge can:

You can talk to a lawyer who can help you understand what the law says about custody and access and your child's rights.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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Reviewed: 
September, 2015