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Does my child's preference affect custody and other legal issues?

For every parent going through a difficult family legal experience, be it divorce or child custody dispute, there is a child going through the same experience. And depending on his or her age and understanding of the situation, a child may have opinions on what parents should do to resolve a particular issue.

The extent to which a child's preference might affect legal issues varies, though. 

A child's preference in court

Children should not have to appear in court if they are very young or if it is not in their best interests to do so. That said, their opinion can still affect legal matters. As noted in the Family Law Act, the courts can appoint a person to assess a child's views for consideration. 

Further, depending on a child's age and the capacity of his or her parents, courts may appoint a lawyer for the child. A child can also participate in a proceeding without a litigation guardian if he or she has legal capacity to do so.

A child's preference in family matters

Outside of court, parents should consider their child's views when it comes to various family matters. This is especially important in the wake of a major event like a divorce, as it can allow them to retain some sense of control.

There is a line, though. For example, parents should not feel inclined to have a child decide where they will live. However, they can take into account whether a new home has the amenities a child wants, like his or her own room or a big backyard.

A child's preference in his or her own life

Children of almost any age experience complex emotions in response to major events like parental divorce or shifts in custody. Giving a child the opportunity and outlet to express these emotions is crucial in helping them navigate his or her own life.

Parents would therefore be wise to keep communication lines open with children. Talk to them about how they are feeling and let them ask questions. It might also be wise to consult a counsellor experienced in helping young people through these difficult times.

Respecting a child's voice in and outside of court can be crucial in understanding and preserving his or her best interests. While a young person's preference may not always be feasible or wise in complex family matters, it is still worth hearing and considering.

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