The kids should live with me.”  “No, they should live with me.”

Fights about parenting are common in family law.  Dad says that Mom is a cannibal woman from Mars.  Mom says that every night Dad beats the kids to death with broken bottles and dances on their graves, singing Halleluiah (apologies to Monty Python).

Each parent will swear that the child loves them the most, has a poor relationship with the other parent, the other parent is unable to provide the care and nurturing the child needs, etc.  “Me good parent; other parent bad.”  Each parent will try to manipulate the child: “You love me the most, right?”  It’s as predictable as it is sad.

So how is a judge to decide?

Judges have the power to interview the child – even in the absence of the parents and their lawyers.  Most refuse to do this.  There are all kinds of problems with judges taking evidence in secret.

The Family Law Act allows judges to order a “views of the child” report.  (In a future blog we will discuss “parenting reports” aka “needs of the child” reports.) This will usually be done by a clinical counsellor, psychologist, or psychiatrist.  Sometimes it will be done by a family lawyer – who does not work for either Mom or Dad. 

The expert interviews the child and tries to get the child to give an uncoached statement of what the child wants.  It might be unrealistic.  I’ve often had kids say they want to spend 100% of the time with each parent.  Or that they want the parents to get back together and stop fighting.  Sometimes the kids say that they want Mom to do this, and Dad to do that.  Maybe Mom helps with homework and Dad drives them to activities.  Maybe they want sleepovers with each parent.  Maybe not.  But at least the kid’s voice gets heard. 

The expert provides the report to the court, just setting out what the child wants and thinks about what should happen.  The judge isn’t required to do what the child says.  But the judge is required to pay attention to it.

The upsides of these “views of the child” reports include it cuts through the posturing of the parents.  It prevents the child being forced to testify in court. 

Downsides include that the experts are very expensive.  They are often very slow (sometimes up to a year) to produce a report.  And very few people do these reports.  Some are very good at it.  Some are terrible.  An experienced family lawyer will know each of the experts who works in this field.  We will recommend the right expert for the case. 

If you want your child to have a clear voice in your family case, ask about getting a views of the child report.