Does my 12 year old get to decide which parent they live with?

By Birkin Culp

A question which often arises for separated families who are involved in court litigation is “at what age can my son or daughter decide where to live?” The short answer which is explained in greater detail below is that there is no “magic deciding making age” for children under the age of 18 years. More importantly, the stated preference of a child as to where he or she wishes to live is only one of several factors considered by a Judge who will make the actual custody and access decisions.

“Adult” Children

It is important to clarify that adults are normally not in the custody of other adults. This means a person who is 18 years or older has the freedom to choose with whom to reside and it is extremely unlikely if not legally impossible for an Ontario Court to award legal custody of a competant adult to another adult. 1

“Under Age” Children

Many parents of children under the age of 18 years who are separated and who are involved in family court litigation want a court to be aware of their child’s wishes as to where that child wants to live. Parents need to be aware however that a family court judge will not simply accept a mother or father’s statement as to where the child wants to live and end a contested court case at that moment unless both parents agree. The reason a contested court case does not end once a parent claims to know what their son or daughter wants, is because in a court case the child’s wishes are only one of several considerations considered by a family court judge before that Judge makes a final decision. Judges who are charged with determining custody and access issues will consider and weigh a number of factors which are outlined in Part III of the Children’s Law Reform Act.2 This is sometimes referred to as the “best interests” test and generally, the same considerations apply to court case concerning the children of married parents and the children of unmarried parents.

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