At what age can my child choose where they live?

Oh how I love and loathe this question.

I loathe it because it doesn’t have an answer.

I love it because it doesn’t have an answer.

When my stepdaughter turned 12, her maternal family told my husband, in no uncertain terms, that they had told his daughter that ‘when she turned 12’ she could decide whether or not to continue spending time with her dad. He was then told she no longer wished to come and spend regular time with our family, and he could visit her at her mum’s house. Or something like that.

Anyway, our personal circumstances aside, I can tell you now – there is no legal or statutory age at which a child can decide where they want to live. Well. I mean. Technically they can. When they turn 18. Your adult child can choose where they live.

Practically, it’s often said that teenagers will ‘choose with their feet’. Regardless of what parenting arrangements are in place, by their teenage years, your kids will usually be fairly emphatic in their preferences, and are usually resourceful enough to ensure they are spending their time where they want to spend it. But that’s not the law.

The Family Law Act 1975 (Cth) (the Act) does not stipulate an age at which a child’s views and wishes will determine any decision around parenting orders. Nor does case law. At the end of the day, it still comes back to section 60CC of the Act and what arrangements are in the best interests of the child.

So when would their views and wishes count?

And how can they be articulated to the court?

The views and wishes of a child can be obtained via a Family Report in court proceedings, or potentially through a child consultant in mediation or out of court negotiations. Basically, an experienced professional who works with children and has an understanding of emotional and cognitive development and children’s support and parenting needs, will assess the children and provide a report to the parents and/or the court. These assessments can include interviews with parents, interviews with children, observations of interaction between parents and children (and other family members) and gathering of information from other sources such as doctors and schools.

This allows the knowledgeable professional to form an informed and educated view on not just the views and wishes of the children, but how those views and wishes have been formed. They will consider things like:

  • How much of the situation does the child understand?
  • How impressionable are they?
  • To what extent are their views based on the views of a parent?
  • Does the child align their views to please a parent or parents?
  • How mature is the child? Emotionally? Cognitively?
  • How dependent is this child on their parent or parents, both to meet their daily care and protection needs, as well as their ongoing emotional development?

This can get pretty complicated. So I like to think of it this way:

“Does the child know what their best interests are?”

If you are like me, and like a checklist – use section 60CC. How much of that section would the child actually understand and be able to answer?

As every child is different, you can’t assume that any given age provides for this clarity of understanding. I’ve met 8 year olds that could articulate this clearly, and 15 year olds that are so aligned with a primary parent they can’t express a single independent thought.

Even if the court is satisfied that a child’s views and wishes should be considered, they then apply judicial discretion (so, their own view) on the weight that they should give to those views and wishes. This is when age may start to play a role.

The court knows that whilst the 8 year old is at the hands of their parents as to where they live (as parents can still control the movements of a younger child) a similarly expressed 15 year old is going to go where they want to, regardless of the orders made (in most cases). So the court might give more weight (importance) to the views of the older child, and less to the younger. They will consider the views and wishes and determine how important they are at that time to any orders that the court must make.

So.

Clear as mud?

Probably. It’s a bit like that. The important takeaway is to know that there are other avenues available to assist you to know how your child really feels, what they really want, and what would likely be in their best interests i.e. engaging a child consultant or other children’s professional.

I am genuinely passionate about helping families get on the same page and work to make their children’s lives the best they possibly can. Separation is just another family dynamic and doesn’t mean your child can’t get everything they want, need and deserve from their childhood.

Get in touch if you think I can help you and your family. Separate better.

JP

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