Can my 12 year old decide where to live?

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As children get older, one of the first questions I’m asked by parents is “How old does my child have to be to decide who to live with?”  That is often followed up with a number, like 12 or 14.

The truth is that the law does not specify an age that a child gets to make the choice.  In fact, the courts are quite clear that children never get to make the choice. This surprises a lot of people, but the law is concerned with what is in the best interests of the children.  Generally, it is never in a child’s best interest to give them power over parents.

Instead, the law states that children should have a voice, but not a choice, in the decision. Essentially, the child’s wishes should be taken into account, but the child does not get to decided.  This is important because we do not want children to play parents off against each other.  For example, if one parent is the “tough” parent, and sets out rules and curfews, the court sees danger in a child choosing to live with the other parent because of a perceived lack of rules.  Also, we don’t want a situation where the child switches living arrangements every time a parent does something that makes the child unhappy.

So, what do you do with a 15 year old who is adamant that they want to live with a particular parent?  Practically speaking, the court recognizes that they have very little power to force a 15 year old to do anything. It isn’t practical to pick up a 15 year old and buckle them into a car and drive them to the other parent’s the way you can with a 4 year old. Instead, we want to look at why the child is picking one parent over the other, to ensure that there is no alienation occurring, and make sure that the living arrangements are in the best interests of the child.

If you need help figuring out this issue, or any other family law related issue, book a consultation.

2 comments
  1. Would you have to prove alienation and if it isn’t possible to prove would the courts investigate based on your testimonial?

    • Hi Cody,

      The Alberta courts are very concerned about parental alienation. If it can be proven, and it does have to be proven, I have seen courts change primary parenting from one parent to the other. As I mentioned in the post, the Court is only concerned with the best interests of the children. If the one parent is purposely keeping the child from the other parent (either physically or emotionally) the Court will intervene.

      The difficulty comes in proving the alienation. Your testimony is not enough. The Court has several options if they suspect alienation, including:

      1) Appointing a lawyer for the child(ren);
      2) Ordering a Bilateral Parenting Assessment;
      3) Ordering a Practice Note 8 Assessment.

      If you have more questions about alienation and how to combat it through the court process, please book a family law consultation with Law On Demand at https://lawondemand.ca/services/familylaw/

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