Are the wishes of the Child considered during divorce?

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During the divorce process, one of the more difficult issues to resolve is the daily custody arrangements of the minor children. For the most part, the Court will want the children to have equal time with their parents to foster solid relationships with both their mother and their father. Many times, this works out for the best for everyone, but sometimes other factors are taken into consideration. 

There can be instances where the particular wants and wishes of the child will be heard by the court. However, it is important to note that the willingness of the court to consider the wishes of children is uncommon and oftentimes depends on the age and maturity of the child. Furthermore, the children will not be allowed to present their wishes directly to the court as the court will not take direct evidence from children. This protocol is an effort to keep children as far from the actual proceedings as possible.

As such, the court will initially apply the traditional standard known as the “best interest of the child” standard. And, oftentimes, the court will determine that it is in the children’s best interest to have equal time with both parents. When determining that custody should be shared equally amongst parents the court will usually look to two specific concerns;

  1. That the children have the opportunity to have a meaningful relationship with both parents
  2. The need to protect the children from any form of physical, mental, or emotional abuse at the hands of one parent or the other

If there are no verifiable concerns regarding the children’s safety, then the court will fall on the side of preserving the children’s relationship with both parents and, absent the parent’s coming to their own understanding and agreement, will usually allot equal time to both parents. 

In some instances, particularly if children are over the age of twelve (12), the court will be open to hearing the preferences of the children. However, prior to hearing the wishes of children the court will look to two important factors;

  1. The chronological age of the child; with children between the ages of 12-15 getting some consideration and children over the age of 16 being given greater weight in their preferences
  2. The overall maturity of the children

Since overall maturity is a very subjective determination the court will usually assign a social worker or court appointed family counselor to meet with the children to discuss their preferences. During this discussion the children will have an opportunity to explain their preferences and the reasoning behind their wishes. Once the counselor has enough information, they will supply the court with a report which will make recommendations based upon the interview with the children. 

However, regardless of the recommendations of the family counselor, the final decision is always with the court itself. When this occurs there is always the possibility that the court will put into place a custody agreement that neither parents nor children are content with. Therefore, when parents are struggling to create a family custody agreement, it is almost always in their best interests to work together to come to an agreement that takes everyone’s preferences into consideration, including their children’s wishes.

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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