Can My Child Choose Which Parent to Live With?

One of the most questions from family law clients is – can my child choose which parent to live with?

One of the most common misconceptions in family law is that a child can decide which parent they want to live with once they reach a certain age.

There is no magic age in Australia when a child can decide which parent they will live with.

Instead, the Family Court considers a range of factors when determining parenting arrangements, including the child’s views where appropriate. However, a child’s wishes are only one of many factors the Court considers when determining what arrangements are in the child’s best interests.

Understanding how the Court approaches a child’s views can help parents make informed decisions and avoid common misconceptions.

Is There an Age When a Child can choose which parent to live with?

No.

Many people believe children can decide where they will live once they turn 12, 14 or another particular age.

This is a myth.

There is no age under Australian family law where a child automatically gains the legal right to decide which parent they will live with or spend time with.

Every family is different, and every parenting matter turns on its own facts.

Does the Family Court Consider My Child’s Wishes?

Yes.

The Family Court may consider a child’s views when determining what parenting arrangements are in their best interests.

However, a child’s wishes are not determinative.

The Court is required to consider a range of factors, with a child’s wishes being just one of those considerations.

The weight the Court gives to a child’s views will depend on an assessment of matters including:

• the child’s age;
• the child’s maturity;
• the child’s level of understanding;
• whether the child’s wishes appear to be genuinely held and well informed; and
• whether the child’s views have been improperly influenced by another person.

Simply because a child expresses a preference does not mean the Court will make orders consistent with those wishes.

How Does the Family Court Find Out What My Child Wants?

The Court does not usually ask children to attend Court and tell the Judge where they want to live.

Instead, a child’s views are commonly obtained through a Family Report prepared by a Family Consultant or privately engaged Family Report Writer. These professionals are typically experienced psychologists, social workers or counsellors with specialist training in family law matters.

During the Family Report process, the Family Report Writer may interview:

• each parent;
• the child (where appropriate);
• step-siblings;
• significant members of each household; and
• any other person they consider relevant.

They will also observe the child’s interactions with each parent and ask questions designed not only to understand the child’s wishes, but also to assess the child’s maturity, level of understanding and whether those wishes appear to be genuinely held or influenced by external factors.

There are circumstances where a child may not be interviewed, particularly where they are very young or where it is otherwise considered inappropriate.

The Family Report Writer then prepares a report for the Court, which may include:

• the child’s expressed wishes;
• observations about the family dynamics;
• an assessment of the child’s developmental needs; and
• recommendations about what parenting arrangements are likely to be in the child’s best interests.

While the Court is not bound by the recommendations contained in a Family Report, it is often one of the most significant pieces of evidence in parenting proceedings and is frequently given considerable weight.

For more information in family reports check out our article What if I don’t agree with the family report? 

Does My Child’s Age Matter?

Yes—but not in the way many people think.

Generally, the older and more mature a child is, the greater weight the Court may give to their views.

However, maturity is often more important than age alone.

The Court will also consider why the child holds a particular view.

For example, is the child expressing a genuine preference based on their own experiences, or is their view influenced by conflict between the parents, pressure from one parent or a misunderstanding of the consequences of the arrangements they are requesting?

These are all matters the Court may consider.

Should I Ask My Child Who They Want to Live With?

Generally, no.

Parents should avoid placing children in the middle of parenting disputes or asking them to choose between their parents.

Even well-intentioned questions can place enormous emotional pressure on children and may negatively affect their relationship with both parents.

Where parenting arrangements are in dispute, it is generally preferable for appropriately qualified professionals to ascertain the child’s views through the Family Report process.

What If My Child Refuses to Spend Time With the Other Parent?

This is another issue we are frequently asked about.

A child’s refusal to spend time with the other parent does not automatically mean Parenting Orders can be ignored.

There may be many reasons why a child is refusing contact, including:

• conflict between the parents;
• family violence;
• fear or anxiety;
• developmental issues;
• loyalty conflicts; or
• age-related independence.

Rather than making unilateral decisions, parents should obtain legal advice as early as possible.

We recommend that you make all attempts to facilitate and encourage your child to have a relationship with the other parent, unless there is a good reason, for example, their safety is at risk. You should obtain independent legal advice if this is an issue.

Unless there is a good reason that impacts the safety of your child, it is usually in your child’s best interests to have a relationship with both parents, and is supportive of their long term physical and psychological wellbeing.

Can I Change Parenting Arrangements Because My Child Wants To?

No.

If Parenting Orders are in place, parents should not simply change the arrangements because a child has expressed a preference.

Where parents agree, arrangements can often be varied by consent.

Where agreement cannot be reached, mediation or Court proceedings may be necessary to determine whether changes should be made.

The Court’s focus always remains on what is in the child’s best interests.

Common Mistakes Parents Make

Some of the most common mistakes include:

• telling children they can choose where they live;
• asking children to choose between their parents;
• discussing Court proceedings with children;
• coaching children about what they should say;
• assuming a particular birthday changes the law; and
• changing parenting arrangements without obtaining legal advice.

Avoiding these mistakes can help protect children from unnecessary conflict.

Summary: When can my child choose which parent to live with?

The answer is never.

There is no set age at which a child automatically gets to decide which parent they will live with.

A child’s wishes are simply one of many factors the Court considers when determining what parenting arrangements are in their best interests.

Having said that, the older and more mature a child becomes, the greater weight the Court may give to their views.

In practice, older teenagers may eventually “vote with their feet” by physically choosing where they spend their time. However, that does not mean they have a legal right to decide where they live, nor does it mean Parenting Orders automatically cease to apply.

Every parenting matter is different, and every child is different.

When can my child choose which parent to live with? Resolving Parenting Disputes

Court proceedings should generally be considered a last resort.

Many parenting disputes can be resolved through:

• negotiation;
• lawyer-assisted negotiations;
• child-inclusive mediation;
• Family Dispute Resolution; or
• counselling.

Resolving disputes outside Court often results in better long-term outcomes for both parents and children.