With whom will a child live after separation or divorce?

When ARE childREN able to decide for themselves about who they will live with?

 The weight given to the views of children in parenting proceedings depends on the age of the child, but just as importantly, it also depends upon the maturity, insight and understanding that particular child has.

There is a common misconception that in Family Law parenting disputes about where & with whom the child will live, a child will have the deciding vote when they reach the age of 12. This is not the case. 

There will come a time when children will 'vote with their feet' so to speak and place themselves physically where they want to be. That time is not age specific.

Parents ought to avoid giving children the impression that the child's decision will be final as soon as they turn a particular age. Not only might such advice be incorrect should the case end up in court, but it may compromise the trust the child has in the parent.

 How can you assist in these situations?

Explore the reasons behing the concerns a child raises about spending time with the other parent. Is the child able to articulate their concerns... are those concerns age appropriate?

Developmentally appropriate concerns like homesickness will not usually cause a Court to stop spending overnight time with a non-residnetial parent of a school aged child. In this instance, you might assist a child develop self-soothing methods if they become unsettled at night or to establish a bedtime routine a child can follow at both residences to try to feel more comfortable at bed time.

Are the concerns based on environmental factors such as noise or social factors such as not liking a step sibling at the second residence? In this instance, a lot will depend on how the parent in the second home handles the situation, and if supported by the primary carer even better. Time is a great leveller but if this fails consider enlisting the help of a counsellor. Things can be remedied if handled appropriately by the parents.

The Court is reluctant to separate siblings becaus they often provide comfort for one another. Siblings even those that argue a lot are usually strongly attached to one another. However the Court will rarely force a mature and insightful child to spend time with a parent they refuse to see.

Is a child mirroring concerns, even on an unconscious level, from their primary carer who themselves may be anxious about being away from the child? Does the child have an appreciation for the possible long term effects on a relationship with a parent if they do not spend substantial time with that parent? 

What do the Courts look for?

The Court has a shrewd eye for assessing where a child's purported reluctance to spend overnight time with a non-primary caregiver has come from a prent, rather than the child themselves. In litigated parenting disputes, this might involve the Court appointing an Independent Children's Lawyer to give an independent view of what would be in the child's best interests. An ICL does not always do what a child says that they want. After all, a child also refuses to eat their vegetables and we know it is good for them anyway.

Protecting children from unacceptable risk of harm, neglect and abuse is an obligation owed to children by us all and if you believe your child is at risk with another parent or care giver you must act immediately and thereafter consider obtaining legal advice.