Read below as Devry Smith Frank LLP’s Toronto Family Lawyer John Schuman answers a common question regarding family law specifically related to joint custody and legal considerations around parenting.
Q: My son is 13, his father and I separated in 2005. My son lived with me until 2012, and decided to go live with his father. His father and I have joint custody. Now my son wants to come back home, he has 2 brothers and a sister that live with me. Can he just come back here or do I have to go back to court first?
A: From a legal perspective, where a 13 year old lives can depend on whether there is a court order that sets that out. From a practical perspective, if a 13 year old is making a voluntary and safe choice, not much will happen if he moves back with you.
There are a number of factors that judges consider when making a decision about where a child should live. They are set out in this podcast: and on How Do Judges Decide Which Parent Gets Custody of a Child?. One of those factors is the views and preferences of the child. When a child is young, judges give a child’s views and preferences very little weight. They also give very little weight if the child’s views have been manipulated by an adult. However, as children get older, judges give children’s views much more weight. For examples, see this article.
Judges are often very reluctant to make an order forcing a teenager to live with one parent instead of another where that order is against the teenager’s wishes. The reality is that teenagers often do not listen and go to the home where they want to stay. Where one parent wants to force a child home, the court’s only real option is to order the police to intervene. However, judges are very reluctant to do that unless the child is choosing to live with a parent who poses some threat to the child’s safety, either by way of abuse (which can include emotional pressure by one parent to encourage the child to reject the other parent) or neglect. If that is the case, then a children’s aid society usually becomes involved as well. However, absent these types of concerns, where a child makes the decision freely to change homes, judges are reluctant to interfere.
The child changing homes will have an effect on child support. How child support can be changed is explained in this podcast and in this video. The change in support can prompt a parent to make bad parenting allegations against another parent. However, since child support does not cover all the costs of raising a child, the decrease in support is often less than the decrease in the child-related costs, which makes the support not worth fighting over.
You should speak to a good family law lawyer to understand how the law would apply to the specifics of your case, as small facts can make a big difference.
For more information about the legal considerations around parenting, joint custody, as well as child support, including the steps necessary to change an existing order or agreement, you may want to get a copy of this $20 book on the Basics of Ontario Family Law or contact Toronto family lawyer, John Schuman.