When parents disagree about parenting arrangements, one of the most difficult questions can be deceptively simple:
What does the child want?
Children can have important views about where they live, how parenting time operates and issues affecting their day-to-day lives. At the same time, children should not be forced to choose between their parents or carry responsibility for deciding the outcome of an adult dispute.
Alberta family law therefore has different ways of obtaining information about a child's views while attempting to protect the child from unnecessary involvement in litigation.
Two concepts parents frequently encounter are judicial interviews and Views or Voice of the Child reports.
They are not the same thing, and neither means that a child gets to decide the case.
Does a Child Get to Choose Which Parent to Live With?
There is no universal age at which a child simply becomes entitled to decide their own parenting arrangement.
The Court's overriding consideration is the child's best interests.
A child's views and preferences can be relevant, but their significance depends upon factors such as the child's age, maturity, circumstances and whether the views appear to be independently expressed.
A teenager's strongly and consistently expressed position may have different practical significance than the comments of a very young child.
Even then, the child's wishes are not necessarily determinative.
Why Courts Need to Be Careful About Children's Views
Asking children what they want can create serious emotional pressure.
A child may love both parents but believe that expressing affection for one parent betrays the other.
Some children try to protect a parent emotionally.
Others may tell each parent what they think that parent wants to hear.
In high-conflict cases, allegations may also arise concerning alienation, influence, coaching, estrangement or parentification.
The Court therefore needs reliable information while minimizing the risk of putting the child in the middle of the litigation.
What Is a Voice of the Child Report?
A Views or Voice of the Child intervention is one mechanism through which information about a child's views and needs can be gathered by an appropriately qualified professional.
Under Alberta Court of King's Bench Family Practice Note 7, Views or Voice of the Child is one of the recognized forms of intervention.
The professional may gather information from the child as well as parents and relevant collateral sources, depending upon the nature and scope of the intervention.
The purpose is to provide the Court with information about the child's perspective without making the child a witness in the conventional sense.
Is a Voice of the Child Report a Parenting Assessment?
Not necessarily.
This distinction is important.
A Voice of the Child process focuses principally on obtaining information concerning the child's views and needs.
A comprehensive parenting evaluation has a broader purpose and may assess parenting capacity, family functioning and other matters relevant to the child's best interests.
Alberta's Practice Note 7 recognizes several different interventions, while Practice Note 8 deals with child custody/parenting evaluations.
The correct intervention depends upon what information the Court actually needs.
What Is a Judicial Interview?
A judicial interview generally involves a judge speaking with a child in connection with a family proceeding.
Parents sometimes assume that asking the judge to speak directly with their child is the simplest way to establish what the child wants.
In reality, judicial interviews require considerable caution.
A judge is a decision-maker, not a therapist or parenting assessor. There can also be procedural questions concerning what is discussed, how the information is communicated to the parties and how fairness between the parties is maintained.
For those reasons, a judicial interview is not automatically appropriate simply because a child has expressed strong views.
Will the Judge Ask My Child Which Parent They Prefer?
Parents should not assume that a judicial interview will amount to asking:
“Which parent do you want to live with?”
Reducing a complicated parenting dispute to that question can place an inappropriate burden on a child.
The purpose of considering children's views is to understand their experience and perspective as part of the larger best-interests analysis—not to transfer the judge's responsibility to the child.
How Much Weight Will the Court Give a Child's Wishes?
There is no mathematical formula.
Factors that may become relevant include:
- the child's age;
- maturity;
- ability to communicate independent views;
- consistency of the views;
- reasons underlying the child's position;
- family circumstances;
- the child's relationship with each parent;
- whether there are safety concerns;
- whether the child may have been influenced;
- whether alienation or estrangement is alleged; and
- the overall best interests of the child
Context is critical.
What If a Child Refuses to See One Parent?
A child's refusal can be one of the most difficult situations arising after separation.
The reason for the refusal matters.
A child may resist contact because of legitimate fear or past experiences. In another case, conflict between the parents may be influencing the child's perceptions. In still another, the child's resistance may arise from developmental, emotional or practical concerns.
Terms such as alienation and estrangement should therefore not be used as automatic explanations for every case in which a child resists parenting time.
Determining what is actually occurring may require professional assessment.
Can a Voice of the Child Report Prove Parental Alienation?
A Voice of the Child report should not automatically be treated as an alienation assessment.
Its purpose and scope may be considerably narrower.
Where serious allegations exist concerning alienation, psychological functioning, parenting capacity or risk, a different intervention or assessment may be required.
This is why defining the question that needs to be answered is so important before selecting an intervention.
Can Parents Tell Their Child What to Say?
Parents should avoid coaching children or discussing litigation with them in ways that place pressure on the child.
Statements such as “tell the judge you want to live with me” can create emotional conflict for the child and may ultimately damage the parent's position.
Children should generally be permitted to maintain relationships with both parents without feeling responsible for winning a legal dispute.
What If I Think the Other Parent Is Influencing the Child?
Avoid responding by attempting to influence the child in the opposite direction.
Instead, document legitimate concerns carefully and obtain legal advice about the appropriate response.
Depending upon the seriousness and nature of the concerns, possible approaches may involve:
- a Voice of the Child intervention;
- a parenting intervention;
- a psychological evaluation;
- a parenting evaluation;
- child counsel;
- therapeutic intervention; or
- other Court-directed processes
The appropriate option depends upon the problem requiring investigation.
What Is Child Counsel?
In some cases, the Court may appoint a lawyer to represent a child.
Child counsel is different from a Voice of the Child professional and different again from a parenting evaluator.
The appropriate role depends upon the Court order and circumstances of the case.
Ulasi Law Group will address child counsel separately in this Family Law Knowledge Series.
What Are Practice Note 7 Interventions?
Alberta Court of King's Bench Family Practice Note 7 establishes a framework for interventions that can assist the Court in child-related family disputes.
Recognized evaluative interventions include, among other things, triage, Views or Voice of the Child interventions and parent psychological evaluations.
The Court can therefore select an intervention appropriate to the actual issue instead of treating every parenting dispute as requiring a comprehensive psychological assessment.
What Is a Practice Note 8 Parenting Evaluation?
Practice Note 8 addresses child custody/parenting evaluations.
These evaluations may become relevant where parenting issues cannot be resolved and the Court requires broader expert evidence concerning parenting and the child's best interests.
A full evaluation can be significantly more extensive than simply obtaining a child's views.
Protecting Children From the Litigation
The central objective should not be to obtain the statement most favourable to one parent.
It should be to ensure that the child's needs, experiences and views are understood appropriately while minimizing harm caused by the litigation itself.
Parents can help by:
- avoiding negative comments about the other parent around the child;
- not asking the child to carry messages;
- not interrogating the child following parenting time;
- avoiding discussions about affidavits or Court strategy;
- reassuring the child that adult decisions are not their responsibility; and
- supporting appropriate professional involvement where necessary
Speak With an Edmonton Family Lawyer About Your Child's Voice
Parenting disputes involving children's wishes can quickly become complicated, particularly where there are allegations of alienation, estrangement, family violence or a child's refusal to participate in parenting time.
Choosing the appropriate method of obtaining the child's views can be as important as the information itself.
Ulasi Law Group assists parents in Edmonton and throughout Alberta with parenting disputes, Voice of the Child issues, assessments, child counsel and other complex family-law matters. Contact our family-law team to discuss your circumstances.
This article provides general legal information and is not a substitute for legal advice concerning your particular circumstances.
Frequently Asked Questions
At what age can a child choose which parent to live with in Alberta?
There is no automatic age at which a child alone determines the parenting arrangement. The child's views may carry increasing significance depending upon age, maturity and circumstances, but the legal determination remains based upon the child's best interests.
What is a Voice of the Child report?
It is a process designed to obtain information about a child's views and needs through an appropriate professional so that those views can be considered in the family proceeding.
Is a Voice of the Child report the same as a parenting assessment?
No. A parenting evaluation can be substantially broader and may examine parenting capacity, family dynamics and other best-interests considerations.
Can a judge interview my child?
Judicial interviews may occur in appropriate circumstances, but they are not automatic. Courts must consider the child's welfare as well as procedural fairness.
Does my child have to testify against the other parent?
Obtaining a child's views does not necessarily mean making the child a conventional witness. Processes such as Voice of the Child interventions can provide information while reducing the child's direct involvement in litigation.
What if my child refuses to visit the other parent?
The reasons for the refusal need to be understood. Safety concerns, estrangement, family conflict, influence, alienation and developmental factors can require very different responses.
Can a Voice of the Child report establish parental alienation?
It should not automatically be treated as an alienation assessment. Where alienation or psychological concerns are central issues, a different or more comprehensive professional intervention may be required.
Can the Court appoint a lawyer for my child?
Yes, child counsel can be appointed in appropriate circumstances. Alberta Court of King's Bench has a specific Order to Appoint Child's Counsel.