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The Voices of Children in Child Custody Cases

"Do I Get a Say?"

Most parents going through the difficult process of divorce recognize that the impact of their decision to separate falls heaviest on their children. Kids don't make the choice to end their parents' relationship and they may have their own opinions about what happens to them next, who they want to live with, and how much time they want to spend with one parent or the other. Amidst the discussions between the parents, they may be wondering if the children's wishes are a factor in developing a parenting schedule.

The Child's Opinion as Part of Determining Their "Best Interests"

The guiding principle informing any parenting decision by a court is what is in "the best interests of the child." Under the Alberta Family Law Act, there are many factors that are involved in determining what is in a child's best interest. Evaluating the child's physical, psychological and emotional needs takes into consideration many personal and economic factors beyond the child's control.

While the ultimate decision lies with the parents and the Court, under the Family Law Act, a judge making a best interests evaluation may take into consideration the child's views and preferences, to the extent that it is appropriate to ascertain them. Generally, the older the child, the greater weight is given to their opinions about where they want to reside.

How a Child's Voice can be Heard

In Alberta, there are a number of ways in which children's voices can be heard as part of the custody decision-making process. The most common include:

  • A report prepared by a court-appointed professional who has interviewed and evaluated the child;
  • Testimony of a professional who has interviewed the child and is retained by one or both parents; and
  • Having an independent lawyer for the child appointed.

Having the voice of the child heard is not the direction in all custody and parenting cases. It is ultimately up to the Court to decide if it is appropriate, and to what extent they wish to hear evidence. It can however be an effective tool to eliminate the he said / she said situation that can arise between parents in contested parenting disputes. At Soby Boyden Lenz, we can assist in advising you if having the voice of the child heard is appropriate, and in the process of seeking this relief from the Courts.

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