Sherry Miller Aug. 3, 2020

Many of my custody clients have asked me whether it matters what their teenagers want in regards to living arrangments, and my answer has been "it depends...." There is no set rule as to a definitive age a child can express his/her preference in custody cases, but if the court determines a child is of sufficient maturity to express the preference, the court will consider it. Just because a child prefers to live with one parent over another does not necessarily mean that will happen. Courts are aware that children can be motivated by desires that are not in their best interest. For example, let say you have a child who is 15 years old. One parent is more lenient than the other especially when it comes to sex, dating and alcohol consumption. Assuming the child prefers the lenient parent, does that mean living with that parent is in the child's best interest? More than likely not.

In high conflict custody cases, or cases involving children who have mental health issues, criminal charges, addictive behaviors and/or disabilites, it is a good idea to work with counsellors, therapists, parenting coordinators and child custody experts. They may be better at communciating to the judge the child's best interest verses the biased opinion of that child. Unfortunately having these people involved in custody cases may cost more than the parent can afford, so what can parents do? Parents can reach out to teachers, coaches, friends of family, and relatives who are familiar with the child to see if they would testify as to the child's best interest as alternatives.

The parents can also agree to have the child speak to the judge about his/her preference. This conversation is held in the judge's chambers with a clerk and outside the presence of the parents. There are pros and cons to this approach. The pros are that the child does get to feel as if his/her opinions matter, the court may be able to gain greater insight to each parent's parenting styles, and the court can see first hand whether or not the child is a well rounded and healthy individual. The cons are the child can be coached, the child and the losing parent's relationship could be damaged, the child could feel caught in the middle, causing further stress and discomfort for the child who already is going through the stressful situation of his/her family coming apart.

So unless parents can get along and put aside their differences for the best interest of their children, and reach an agreement, contested custody cases will remain the most emotionally draining in litigation.