Real Teenager Family Law Cases: What would you decide?

• 
  Alfred Mamo
  Lawyer

After parents separate, should a teenager have the right to decide where to live?

Many parents will tell you that raising teens is challenging. The title of a book about parenting adolescents called: “Get Out of my Life, but First could you drive Me and Cheryl to the Mall” says it all!  Teenagers want to be independent and make decisions for themselves, until they need a parent, and then the parent better be there for them right away, no questions asked.

When the parents of teens separate, in cases where there is a high level of conflict,  the challenges of controlling a teenager’s behaviour can shift to the Courtroom.  The law is clear that the custody of children is to be decided based on the child’s best interests. That seems reasonable enough, until one tries to figure out what it means in any particular case.

Should a judge force a 15-year-old boy to live with his father against the son’s wishes?

What if the reason behind the child’s attitude towards his father is the fact that his mother had deliberately turned the boy against his father?

Is it in the best interests of a 15 year old to be physically forced to stop living with his mother, have no communication with her and be compelled to attend a therapeutic program away from the city he lives in, with a view to repairing the relationship between the father and son?

Should the police be asked to enforce custody orders by physically dragging a child out of his mother’s home into his father’s house?

A judge in early 2015 basically answered all of the above questions with a “yes”!  The child, however, in spite of the Court Order, and police intervention steadfastly refused to live with his father, or spend any time with him. The teen even bolted out of a car driven by the father while the car was still moving, dashing out into traffic, and disappearing into the streets of Toronto with his whereabouts remaining unknown for many months until he “surfaced” after he turned 16 years of age.  At one point the father filed a missing person report, the boy called the police to tell them that he was not missing, that he was safe, refused to give them any contact information, and still would not comply with the court order.

About a year later, the case went before a second judge.

The father was asking that the original order be enforced. His lawyer argued that the mother should not be getting away with having alienated the child against the father, emphasizing that the mother was in violation of the court order by not making the child go to the father.  The allegation was that the mother together with an older son, had orchestrated the boy’s flight and defiance of the court order.

The police took the position that any requirements in the court order that required them to look for, apprehend the child and assist with relocating the child from one parent to the other, should be rescinded.

The child, now 16 years of age, had a lawyer asking for the custody order to be changed, so he can be left alone to go back to school (he had dropped out after he went underground), and live in peace, away from the conflict between his parents.  The son was unwilling to live with his father or attend any program for treatment involving him and his father. He said that he was anxious around his father and concerned for his safety, as well as for his mental health and general wellbeing.  The father`s lawyer responded that these were ideas that were unjustifiably placed in the child`s head by his mother who disliked her former husband.

Should a judge be seen to reward the mother and the son for their flagrant disregard of the court order by changing it? Or should the judge confirm the existing order and force the police to enforce it.

Justice Perkins in a decision released recently was torn between upholding the integrity and effectiveness of the administration of justice on the one hand, and the practical reality that he cannot ignore the autonomy, wishes and feelings of a 16 year old.

The Court decided that based on the paramount legal consideration as to what is in the best interests of the child, the previous order should be set aside, and no order for custody be made in favour of either parent.

Was that the right decision in your opinion? How should these cases be resolved?

The boy won his “freedom”, entering into that never Neverland where he is neither a “child” who is legally required to be in the custody of a parent, nor an emancipated adult!  A status that in itself is froth with legal complications and contradictions. But that is for another day to discuss.