I am asked by almost every family law client “what is the age where a child can choose where they live?”
The common misconception is aged 12 or 13. There is no hard and fast rule here. There are a number of factors that the Court’s consider when taking a child’s wishes into account when making a decision as to where that child will live.
The best interests of a child are paramount. If a child wishes to live with the parent who lets them skip school or eat ice cream for dinner every night this would not necessarily be in their best interest and the Court might choose to place little weight on this child’s wishes. If a child has a strong preference to stay at the parent’s house who lives close to school and their friends, this carries more weight.
Obviously very young children with limited ability to rationally express their wishes will not have a lot of weight placed on their wishes. Often young children express a wish for their parents to get back together or that they want to live with both parents equally despite the practicalities being impossible. Older children aged 5-8 years have the skills to verbalise what they want but not necessarily the insight to make a decision that would benefit them most in the long term.
Pre-teens and teenagers’ views are given much greater weight by the Court but this is also dependent upon the maturity and understanding of the child. This is complicated by any issues of violence, the child’s own experiences and the child’s health. A child’s wishes will never be the only consideration of the Court, there are always other factors at play. It should also be stressed that it is never up to the child to make the decision as to where they live or when the spend time with the other parent but that their opinion should be heard. It is up to the adults to make decisions but to listen to what their children are telling them and the reasons behind it.
If you need advice in relation to parenting orders, please call Alison Neville at Blackwell Short on (02) 6393 9200 or email AlisonN@blackwellshort.com.au to make an appointment to discuss your matter with our experienced family law team.