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Can children choose who they live with?

One of the questions I am frequently asked by clients is: In the Courts in Calgary, can children choose who they live with?

When people ask this question, they are usually doing so when one of the parents has made an Application to obtain a custody and access Order, or a guardianship and parenting Order.

It is rare for a Judge to speak to a child directly to obtain an answer, although I do have experience of a Provincial Court Judge that was willing to do so.

It is not unusual for the parents of a child to each claim that the child has expressed a wish to live with a particular parent and, usually, such claim is made in an Affidavit or a Statement in support of an Application. It is my experience that Courts rarely attach any great weight to such a statement.

In such a situation, a Court may decide to appoint a lawyer to "represent" the child. In such a case, the lawyer will meet with the child, attempt to build a rapport with the child and, if the Court then has to determine a particular issue upon which the lawyer has knowledge directly from the child, will ask the lawyer to provide the Court with such information.

In more high conflict cases, or where the Court believes that a more detailed investigation is required, the Court may order that an investigation by an expert is performed. The expert, usually a child psychologist, will meet with the parents, their significant others, the child and any other person the expert believes will provide information that will enable the expert to reach a conclusion (for example, a school teacher or principal).

Once the expert has investigated the matter thoroughly, the expert will provide their recommendations to the Court, and the Court will make a decision after considering such recommendations.

In my experience, by far the most important factor that will be considered by the Court when weighting the child's wishes is the age of the child. The closer the child is to their 18th birthday, the more likely a Court is to consider the child's wishes.

If, after reading this, you would like to discuss any issue regarding divorce, separation, custody and access, guardianship and parenting, child support, spousal support or division of matrimonial property, please call me on 403-538-2105, or send me an email using this link.

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