When Can My Child Decide Who They Live With?
Written by: Adam Wightman | Legal Team
Family Law parenting issues sometimes feel like they can go on forever. When separated parents don’t see eye to eye on the care arrangements for their children, this can create tensions that span many months and even years. This can be particularly acute in situations where children begin expressing their wishes as to the time they spend with each parent, and these wishes don’t align with the current Parenting Plan or Parenting Family Court Orders.
Situations, where children are being ‘forced’ to spend time or live with the other parent against their wishes, can be extremely stressful and emotionally draining on both the children and the parents who feel they are required to continue to comply with the Orders or Parenting Plan.
Unfortunately, this can lead many parents to sadly ‘wish away’ the best years with their children as they await the elusive ‘magical day’ when the children can decide for themselves what the parenting arrangements will be.
A separation can be an extremely difficult time for all parties involved and can create a lot of confusion for the parents trying to understand navigating such a separation with children. That’s where a Family Lawyer comes in! You can find out all you need to know about when to consider a family lawyer in this article! When Do I Need A Family Lawyer (In A Separation)?
So, When Can My Child Make Their Own Legal Decisions?
Contrary to common belief, there is no magical age when children can decide their living arrangements.
The parenting arrangements for all children remain subject to the jurisdiction of the Family Court and the Family Law Act until such time as they turn 18. That is, from a legal perspective, the Family Court has the ultimate power to determine the living agreements for children until such time as they become adults.
The Family Law Act requires the Family Court to consider the ‘best interests of the child’ as the primary consideration when determining what those parenting arrangements should be. However, in determining what arrangements are in the best interests of the child, the child’s expressed wishes are only one of 16 relevant factors that the Court must consider.
Various other factors relating to the child’s:
- Welfare;
- Protection;
- Development; and
- The benefit of them having a relationship with both parents must also be considered by the court.
However, the weight that the Court gives to the child’s express wishes will increase as the child’s age and maturity increases, and their understanding and appreciation of the family law situation develops. And, as we all know, children mature and develop at different rates. Factors such as a child’s home environment, education, influence of siblings, gender, and biological make-up all affect the rate at which a child may mature and develop.
As a general rule of thumb, 12 or 13 is the age at which children’s views begin to be given greater weight by the Court, and by the age of 15 or 16, children’s views will sometimes (though not always) be given overwhelming amount of weight by the Court.
Some of the rationale for this staggered weighting has to do with the physical changes and needs of children as they move throughout their teenage years. As we know, teenagers can become more stubborn and set in their views, and they can also be much more difficult to manoeuvre if they are physically refusing to move between their parents’ homes.
How Are A Child’s Wishes Determined?
So, how does a Court determine what a child’s wishes really are, and how much weight should be given to those wishes?
There are really two main methods utilised by the Court to give children a voice in Family Law parenting matters, being the family report process and the Independent Children’s Lawyer.
Family Reports
The most common method is through the preparation of a family report.
A family report is where a Court consultant or a privately funded family report writer (both of whom are usually trained psychologists or counsellors) read all of the background affidavit material provided by the parents and then meet with the parents and the children to discuss the parenting arrangements. They will usually meet with each parent individually, and then meet with the children separately (if they are deemed old enough) and then observe the children interacting with both parents. They then prepare a report for the Court which contains their observations and recommendations.
Family reports can take the form of a more urgent half-way event (known as a ‘Child Impact Report’ or ‘Section 11F Report’) or they can be a full-day event (known as a ‘Full Family Report’). These reports can be privately funded by the parties or funded by the Court (where you are able to satisfy the Court that you meet the criteria for Court funding).
Family Report writers and the Family Court are highly conscious of identifying the true motivations and influences that may underlie a child’s purported expressed wishes or reluctance to spend time with one parent. In this regard, the Family Court regularly deals with cases where it determines that the children have essentially been alienated by one parent against the other through negative reinforcements, and sometimes outright coaching of the child. This often results in the children spending more time with the non-coaching parent.
It is therefore highly recommended (for a variety of reasons) that you do not coach or otherwise seek to influence a child into expressing a negative opinion against the other parent at the family report interviews. You should also be conscious that sometimes children refrain from expressing an opinion at a family report interview, for fear of upsetting the other parent.
Family Reports When Having Multiple Children In A Separation
Family report writers and the Family Court also often have to navigate the issue of one sibling wanting to spend certain time with a parent, and the other sibling does not.
In these circumstances, the Court is generally reluctant to separate siblings for any period of time, however, they may do so when the reluctant child displays the necessary maturity and insight and has clearly expressed wishes.
The Independent Children’s Lawyer
As part of the Family Court process, the Court may also appoint an Independent Children’s Lawyer (also known as an ‘ICL’). This is an independent lawyer appointed to act on behalf of the child, and in the best interest of the child.
The ICL will also communicate with the child/ren directly at times and will assist the Court by communicating the child’s wishes and concerns with the Court. This is particularly helpful given that children cannot be directly involved or present at the Court hearings.
If you’re curious about other facets of navigating divorce and/or separation with children, we have another article detailing the how much and why around child support! Why + How Much Child Support Do I Have To Pay?
Canny Legal + Expert Legal Advice
At Canny Legal, we have expert family lawyers who are experienced in dealing with all forms of parenting issues, including matters where children are beginning to express clear wishes as to where they want to live.
Get in touch if you have separated or are contemplating or have separated and would like to know how you and your family can benefit from having compassionate and expert family lawyers, you will be in safe hands with our team.
