Seen and Heard: The Views of a Child in Family Law

The Views of a Child in Family Law

The Family Law Act and common law are clear: when determining the best interest of a child, the views of said child are key. Furthermore, the United Nations Convention on the Rights of the Child recognizes that children have the capacity to understand and express their own needs and interests to adults making decisions on their behalf. So, while it is generally best that children not give evidence in court after separation and divorce, there are multiple alternative avenues for a child’s voice to be heard. Here are 7 ways the testimony of a child can be entered in family court:  

1. Parent Affidavit

The Parent Affidavit is the most common way a child’s wishes can be expressed; in it, a parent swears to what the child has told them. The problem with this type of evidence? It is hearsay and likely biased due to it being one parent’s interpretation of what the child has said or done. Little weight is given to Parent Affidavits by the court. 

2. Letter or Video of Child

These rarely see a courtroom as they raise a significant issue of reliability. The court is often worried that parental coaching has occurred or that the evidence has been edited, leaving out parts that may not benefit the submitting party. Such concerns often result in a ruling of inadmissible.  

3. Third Party Evidence

This is evidence provided by a trusted adult: teacher, family member, access supervisor, or counselor who has spoken to the child. Third Party also has issues with hearsay, but it can be admissible if found necessary and is largely considered more reliable than evidence gleaned from two competing parents. Weight given will vary depending on a number of contexts – who the child made the statement to, whether it was made to others, how often the child has made the statement, the age of the child, the intelligence of the child and the influence of the parents. 

4. Voice of the Child Report

A common method of submitting the wishes of a child, these reports are generally brief and prepared by a family lawyer, or by a psychologist appointed by the Court or by consent of both parents. Voice of the Child Reports do not make any direct recommendations about parenting time, but outline questions that were asked of the child, the child’s responses, whether the child appears coached, and a general assessment of the child’s capacity. 

5. Lawyer for the Child

A family lawyer can also be appointed for children a service that is sometimes free through Legal Aid. When appointed, a family lawyer must determine the role they will take: Friend of the Court, Litigation Guardian, or Direct Advocate. A Friend of the Court remains neutral and has no obligation to advise the court of the Child’s wishes; the role takes instructions from the Court and assists the Court in its decision making. A Litigation Guardian decides what is in the child’s best interest and makes those submissions to the Court. A Direct Advocate is a more traditional family lawyer role and represents the child similar to the standard solicitor-client relationship. 

6. Judicial Interview

A judge, at any point during the Court process, may meet to learn of the child’s wishes and views. The interview may occur in the courtroom and the parents may be asked to leave; it could also be conducted in the judge’s office with family lawyers present. There is no strict set of rules or laws governing this process.   

7. Parenting Assessment

This is performed by a parenting expert using psychological testing, interviews of the parties and collateral witnesses, home visits and interviews with children. Parenting Assessments are not often undertaken due to cost but can provide a very helpful window into the family after separation and divorce. Unlike a Voice of the Child Report, a Parenting Assessment will include recommendations for parenting time. 

There are many options to present a child’s point of view in family court, each carrying its own risks and opportunities. To ensure the best interests of your child are served, talk to a Legal Navigator at Coach My Case.