Can children decide which parents to live with?

When determining the living arrangement for children post-separation, parents often wonder at what age can children decide who to live with themselves. It is important to understand there is no one standard age that must be met.

The reality of this question is that each case is different. No specific age requirement exists under the current family law regime.

Although many people believe a child who is 12 years old can choose which parent they wish to live with, this may not always be the case.

How does the Court View the Child’s Wishes?

Under section 60CC of the Family Law Act, the children’s best interest will always be paramount in parenting arrangements. In determining what order would be in the children’s interests, the court will consider any views expressed by the child and any factors (such as maturity and understanding) that the court thinks are relevant.

Weight Given to a Child’s Views

  1. The weight given to the children’s views by the court is dependent upon a number of factors, including:-
  2. Maturity – Whether the child is able to properly consider the impacts of their decision.
  3.  Age – Although not specifically stated, the age of the child will impart the weight given.
  4. External Influence – Whether the child has formulated a view or has been influenced.
  5. Relationships – Whether any other siblings have views on parenting arrangements.

Important Take-Away Points

It is important to understand that when children decide to mature in age, they will usually be able to make their own decisions about where they live, regardless of any court-ordered parenting arrangements.

Therefore, if a child is 16 years of age or older, the court is unlikely to impose an order which forces that child to live with a parent they do not wish to.

Counselling or psychologist appointments can often help during this period to assist with family dynamics and to uncover the feelings of the child/ren.

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