When the question of custody arises in a separation or divorce, does the child have a say? Can he choose who he wants to live with? Me Nolwenn Leroux, family law lawyer, explains to us the conditions for her word to weigh in the balance.
A separation procedure, when it takes place before the courts, is necessarily complicated. Married or not, a couple who officially separates in the eyes of the law must go through a number of steps and decisions that can lead to conflicts. And the situation turns out to be even more complex when children are taken into account in the equation. When the two parents cannot agree on the procedure to follow, it is the family court judge who will make the final decision. But does the child’s words also matter? Will a child who expresses the desire to live with one rather than the other be heard? Will his decision weigh in the balance? We asked these questions to Maître Nolwenn Leroux, lawyer in Paris and specialist in family law.
First, you should know that “it is a child’s right to be heard in all procedures that concern them”but not necessarily an obligation. It is also up to him to ask to be heard by the judge. Me Leroux notes that “it is a false belief to think that the judge will ask the child which of his parents he wants to live with, because that would put him in the midst of a conflict of loyalties. Yes, that would amount to asking the child who his or her favorite parent is, which the justice system will never do. On the other hand, a judge who has often heard the opposing versions of the two parents will be able to “take a little temperature” to the principal concerned: “What he wants to know is how things are going for the child, with each of his parents. And possibly what he would like for his organization, but we don’t ask him direct questions.” Indeed, the lawyer tells us that the child does indeed have the right to assert his choice… under certain conditions. Among which, first of all, his age.
A judge will begin to truly listen to the child’s words as soon as he values it.capable of discernment”. As the law does not specify an exact age, this point is left to the discretion of the magistrates. “We generally consider that it is from 7 or 8 years old.adds Nolwenn Leroux. But the older the person, the more weight their word will have in the eyes of the judge. A teenager”who took the measure of things” and who justifies his choice to live with one of the parents by concrete arguments, such as the need for stability, or proximity to his high school or his extracurricular activities for example, will more easily convince a judge.
“I saw it in a file, where a little one said: ‘I want to be at daddy’s because it’s cool, I can watch TV and eat chips.’ Obviously, that’s not what matters. In this case, the judge will still take the child’s word with more perspective than a teenager who would give real reasons and who would be able to explain them clearly.the lawyer tells us. Nolwenn Leroux also reminds us that when hearing a child in a case of divorce or separation, the family court judge will pay close attention to one detail: has the child been influenced by his parents?
“We see it right away when a child has been pressured to say things he doesn’t mean, because one of the parents wants custody and has explained to him what he should say to the judge. This is also why there are lawyers appointed by the State for children: they speak alone with them and are guarantors of their words, to ensure that they have not been distorted by the words of adults.explains Me Leroux. In short, the child’s choice to live with one or other of his parents counts in the eyes of the judge, who is however responsible for qualifying it according to his age and other factors that he detects.
