Legal Briefs: A voice, not a choice

By Medicine Hat News on February 17, 2018.

How much input should your children have into your post-divorce parenting plan? When I first started practising family law, the conventional wisdom was that children should really know little or nothing about their parents’ divorce. It is still true that experts believe that children should not be involved in the adult details of their parents’ divorce — they do not need information about a parent’s infidelity or spending habits. They should feel free to love each parent, without having to choose sides in disagreements between their parents.

However, many experts now agree that it is important for children to have some input into when they will spend time with each of their parents. The reason for this is that children, especially older children, should have some input into how they spend their time. However, it is vital that everyone involved — parents and children — understand that it is appropriate for children to have a voice, not a choice. In other words, it is appropriate for children to have input into the parenting plan, but they are not, and should not be, the decision makers about the parenting plan. In an ideal world, the decision makers should be the parents, who know and love their children. If the parents are unable to make the decision themselves, then a judge must make the decision.

So, how do the decision makers get the input from the children about how they would like to spend time with their parents? It is not appropriate for the parents to question the children about what they would like. This puts the children in a difficult,if not impossible, situation. Any choice they make will undoubtedly make one parent happy and the other very unhappy. Children are notorious for telling each parent what they believe that parent wants to hear. In addition, parents are not trained in asking questions in ways that the children would be comfortable in providing their true feelings.

Most courts now recognize that an appropriate way to get input from the children is to have a “voice of the child” report. Because these reports are a relatively new development, there is still much debate among lawyers, mental health professionals and judges about the exact method of obtaining these reports. However, most professionals believe that these reports should be completed by a trained professional (usually a mental health professional, but perhaps by a lawyer who has been trained). There is still debate about whether those reports should be a straight reporting of what the children have said, or whether there should be some evaluation of whether the opinion that the children have given is their own or whether it is being coached by one parent or the other.

Children are the most important consideration in determining a parenting plan. Parents and courts are now finding a way to include their input before making the final decision about what the parenting plan will look like.

Catherine Regier helps you navigate the turning points of life. She is a partner with Pritchard & Co. Law Firm, LLP. Contact Catherine at (403)527-4411 or at cregier@pritchardandco.com.

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