Can the children decide for themselves where they want to live?
To what extent do children get to decide for themselves where they live when their parents separate?
The answer often depends on how old the child is, and the reasons for the child's preferences.
It is not appropriate to ask very young children which parent they prefer. Young children worry about offending a parent, and they also need the security of knowing that their parents will continue to act like parents. They shouldn't be responsible for making custody decisions.
On the other hand, older children (especially teens) can have very strong opinions about where they want to live. The child's views and preferences are one factor that courts are supposed to consider when making a child custody and access order.
Sometimes, both parents are clear about what the child's views are. In other cases, each may claim that the child wants to be with them. It's not that uncommon, in fact, for some children to tell each parent what they think that parent wants to hear. In those cases, the parents may need to have a professional get involved to help determine what the child's actual wishes are.
If the case is going through the courts, and evidence about the children's views is needed, the court will generally appoint a lawyer for the children, through the Office of the Children's Lawyer. There is no cost to the parties for this. The Children's Lawyer will get copies of all the court documents, and will have the parents consent to release any important information from other sources: police records, Children's Aid Society records, school records, the child's medical records and, if relevant, information from the parent's doctor or counsellor.
The Children's Lawyer will represent the child's position in court, but they do not simply repeat whatever the child tells them. They will see if the child's views on where they want to live are consistent, and if the child's views make sense. Can a child explain why they want to live with mom or dad? Some children will give a speech to the Children's Lawyer that sounds like it was coached by a parent, and those children won't be able to explain their views well. In a case like that, very little weight would be placed on those views. In some other cases, a child may want a parent to have custody because they feel sorry for that parent, or they are worried that the parent needs them. This could be cause for concern. Sometimes, a child may want one parent to have custody, but doesn't know that parent has serious criminal or drug addiction issues. In those cases, the safety of the child takes priority.
The older the child, the more weight a court will give to their views. The views of children who are 9 and younger are rarely given much weight. Between the ages of 10 and 13, the courts often treat the child's wishes as important, but not decisive. With some teenagers, the court may fear that the child will "vote with their feet" if they have very strong feelings, and that enforcing any court order that goes against the wishes of the child may be almost impossible. In all cases, the courts still have a responsibility to determine what is in the best interests of the child. Courts are more likely to follow the child's wishes if those wishes aren't clearly against the child's best interests.