Our clients often ask us when their children can decide the parenting schedule for themselves. There is a rumour out there that children can make this decision when they are 12. Let me save you a call to your lawyer on your child’s 12th birthday: I can confirm that 12-year-old children do not have the right to determine their own parenting schedules.
Like other decisions involving their health and welfare (school, medical decisions, etc.) the adults in their lives will make this decision for them. At the best of times their parents will agree on the schedule and in less-than-ideal circumstances a judge or an arbitrator will make the decision.
When can children decide where they will reside?
The short answer is when they reach the age of majority, being 18 in Ontario. The more complicated answer is that when children are 16 and older a court almost never forces them into parenting schedules they don’t want. This is a short blog and so we will leave it at that for now.
This doesn’t mean that decision makers don’t care about a child’s views and preferences until they reach age 16. The United Nations Convention on the Rights of the Child provides that children who are capable of forming their own views have the right to express those views freely in all matters affecting them, that the views be given due weight according tot their age and maturity, and that a child shall be provided the opportunity to be heard in any judicial and administrative proceeding affecting them.
As with all decisions around parenting, the decision is made based on the child’s best interests and, of course, the way a child feels about a particular residential schedule is an important factor in determining what is in that child’s best interests. As children become teenagers, and before they are adults, their views and preferences can carry a lot of weight.
How do we know what a child wants?
There are several ways to determine a child’s views and preferences, none of which involve parents asking a child to choose between them (so…please don’t do that). These include:
- A lawyer who is appointed to the child through the Office of the Children’s Lawyer (usually this is where a matter is in court) to determine and advocate for a child’s views and preferences;
- A clinician appointed by the Office of the Children’s Lawyer (usually for younger children) who will report to parents, counsel and the court;
- A Voice of the Child report; and
- Independent evidence from other neutral professionals who work with the children, where available.
If your child is asking for a particular schedule talk to your lawyer or mediator about the best way to address this without setting unrealistic expectations.
Marian Gage is a Certified Specialist in Family Law (LSO), an agent for the Office of the Children’s Lawyer and an Accredited Family Mediator/Intergenerational Mediator (OAMF). You can reach Marian at firstname.lastname@example.org.