My niece is 15 years old and my nephew is 12. The parents…

Hello

There is no automatic age when a court must consider what a child wants as far as custody or access. The court is to take into account the child's wishes, having regard to the child's maturity. But the court always has the power to make a decision ignoring the child's wishes, at any age under 18, as the court must decide these issues in the best interests of the child and children do not always make decisions that are in their best interests.

Generally speaking, courts have said that children under age 12 are usually too young and immature for the court to put significant weight on their wishes. Most courts have said that a child of fairly average maturity at age 16 is old enough to decide these issues for themselves and often courts will just say that a child can live or spend time with a parent or grandparent as he or she sees fit. In between these ages, the court will look carefully at why a child is expressing certain wishes, how strongly those wishes are expressed, the level of maturity that child may have, whether the wishes seem to be reasonable or make sense, and will decide what weight to put on those wishes. The court judges maturity by things such as reports from counselors or teachers, report cards, evidence about how the child does with any activities, or part-time jobs, or other things that show a level of responsibility, or things that show a lack of responsibility like trouble with discipline at school/work or with the police.

The father can certainly apply to a court if the mother will not agree with the change. The court would normally want to get information as to the children's wishes from a counsellor or assessor. Children will not be asked to testify or speak directly to a judge, but to a person trained in dealing with them, assessing their maturity, and so on. The more mature and level headed the child appears, and the more logical their choice, the more likely that a court will give considerable weight to it. Certainly a child being tired of the routine of back and forth between homes, which can be very bothersome, is understandable.