Do children have a choice of which parent to live with in Alberta?

When a divorce occurs and breaks up a marriage between two individuals, it’s never easy. The situation becomes even more complex when children are involved.  This often leads to questions regarding what custody arrangement is in the children’s best interests. These concerns take a fair amount of analysis and involve several factors, which can include the age of the children, the nature of the situation, any special needs and care history of the child.  Sometimes the analysis also considers the wishes or position of the children.

Typically, a child won’t be involved in making decisions on which parent to live with. A child may have a voice, but the final decision will generally need to be made by adults.  

When a child does have a voice in the decision regarding custody or parenting, it is necessary to determine how much weight to give this voice.  The primary consideration will generally be the age of a child. This creates a challenge as there is no clear law setting out the age where children get a voice.  In some cases, a child’s view is considered when they are younger than 12 years old. In other cases, a child’s viewpoint won’t be considered when they are 14 years old or younger. Older teens will usually always have their opinions heard as the courts don’t want them to choose the option of running away.  Each situation is unique and involves many factors, including:

• The maturity of the children
• The nature of the situation (is there violence involved? Is one parent seeking to relocate?  Do siblings have different views?)
• The children’s reasons for the opinion they hold
• Any special needs or health issues of the children in question
• The personal opinions of the Judge hearing the matter

Typically, children will not be involved in court procedures or speak to a judge. Divorces and separations are often emotionally painful, and Judges will generally try to take every step to shield the children involved from the process as much as possible.

If a Court finds it necessary to learn the opinions of a child, there are two ways in which the information may be obtained, and both require a court order.   The Court may order a Voice of the Child Assessment to be conducted by a professional who is experienced with this type of questioning such as a psychiatrist, psychologist or counsellor.  The professional would meet with the child and with both parents separately, and then provide a report to the Court that will become evidence.

Alternatively, the Court may order an independent lawyer to act on behalf of the child.  This lawyer would act either on the child’s instructions or as per the child’s best interests, depending on the child’s ability to instruct counsel.  The lawyer would be able to make arguments and suggestions in court, but would not be able to provide evidence.

In determining which method to utilize, consideration would be given to time restraints, costs and the personal circumstances of the children and the parties.

Call our office at (780) 462-4321, or contact us online if you have questions about your custody or parenting situation.