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Divorce, separation: can a minor child be heard by the judge?

Verified 14 September 2021 - Legal and Administrative Information Directorate (Prime Minister)

Yes, a child able to discern may be heard in divorce or separation proceedings. He is informed of his right by his parents. The request for a hearing may be made by the parents or the minor child. He may be heard alone, with a lawyer or a person of his choice. The judge shall hear the child himself or designate a person to conduct the hearing.

The child may be heard at the time of separation or divorce from his or her parents, as this separation affects his or her living conditions.

The issue of the hearing concerns the residence of the child and the other parent's rights of access, his or her living environment or a decision on parental authority (school orientation...).

The child may, for example, wish to live with his father, with his mother, to live alternately with his parents, not to be separated from his siblings.

FYI  

no matter how old the child is, the child does not decide. He gives his opinion.

The child can be heard only when his parents have initiated divorce or separation proceedings before the family court.

The law does not set the age at which a child can be heard. The minor must be able to discern. His maturity, his level of understanding, his personal ability to appreciate situations, his ability to express a considered opinion are elements demonstrating this discernment.

The minor must be informed by the persons who parental authority (his father, his mother) of his right to be heard. The Family Court must verify that the minor has been informed of his or her right.

The request for hearing may be made to the JAF: titleContent at any time during the divorce or separation proceedings.

If there is no request made but the judge considers that the hearing is necessary, he or she may order it.

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Child request

The child must write to the judge himself.

Who shall I contact

Judge shall hearing the child unless the child has not the necessary discernment or if the procedure does not concern him.

In case of refusal, he shall inform the minor. The reasons for the refusal are mentioned in the judge's decision.

Refusal of hearing cannot be appealed.

Request from parents

Parents (either or both) may apply in writing to the judge for their child to be heard.

The judge may refuse the application in the following cases:

  • The child does not have the necessary discernment
  • The procedure does not concern the child
  • Hearing is not necessary to resolve the dispute
  • Hearing appears to be contrary to the interests of the child

In case of refusal, the judge informs the parents and mentions the reasons in his decision.

When the minor refuses to be heard, the judge examines the reasons for the refusal.

At the initiative of the judge

The hearing may be ordered by the Family Court without a request from the parents or the child.

The hearing must allow the judge to have the child's opinion if he considers it necessary for his decision.

The child is summoned by simple letter.

He is informed that he may be heard alone, with a lawyer or with a person of his choice. If the choice of the person does not appear to be in the interests of the minor, the judge may designate another person.

Warning  

if the minor writes that he or she wants to be assisted by a lawyer and has not already chosen one, the judge will ask for a lawyer to assist him or her.

A minor who has chosen to be heard by a lawyer shall automatically be legal aid.

Parents or their lawyers are notified of the hearing.

The hearing takes place in court.

The judge shall hear the child himself or appoint a person to conduct his or her hearing. This is a person engaged in social, psychological or medical-psychological activities.

The role of the lawyer is to explain to the child the process of the hearing and to help him express his feelings.

The hearing of the child shall be the subject of a report drawn up in the interests of the child. It is not necessarily a word-for-word transcription of the child's words.

This report is made known to the parents according to rules defined by the judge.

The judge makes a decision in the separation or divorce proceedings between the parents.

This decision must indicate that the child has been heard.

The judge is not obliged to follow the child's advice.

Please note

the child cannot challenge the decision between his or her parents because he or she is not part procedure.