When can a child decide which parent they want to live with?

In parenting matters, the question is often asked “at what age does my child get to decide who they live with?” Also related to this is, “when can a child determine if and how much time they will spend with the other parent?”

Until a child is 18, there is no specific age at which a child can decide which parent they want to live with. However, the Family Law Act (“the Act”) provides for a child’s views to be taken into consideration when deciding appropriate parenting orders. There are several forums available for children to make their views known: through independent reports (court based and private) and Independent Children’s Lawyers (“ICLs”).

Reports

Independent reports can be prepared by experienced psychologists or social workers. In preparing their report, the consultant will usually meet with the parties and the children to consider the needs of the children. They will have regard to the child’s age, development, and any issues concerning safety. The child will have the opportunity to express their views, but they are not compelled to do so. The report will make recommendations to the court about what orders would be in the child’s best interests.

The two main types of reports are:

1. Child Impact Reports. These reports are ordered by a registrar or judge, usually at the beginning of parenting proceedings and are prepared by a Court Child Expert. In some circumstances they may be prepared at no cost to the parties; and
2. Family Reports. These reports are prepared by private consultants. They are generally more comprehensive and usually ordered by the court when a matter is progressing to a final hearing.

Independent Children’s Lawyers

The role of an ICL is to act in the best interests of a child. This does not mean they act on the child’s instructions, rather, the ICL must form an independent view about what orders are in the best interests of the child based upon the available evidence. An ICL will obtain evidence to provide to the Court, by:

1. meeting with a children (over the age of 5 and if appropriate) and providing the children an opportunity to express their views;
2. issuing subpoenas to the children’s schools, treating doctors etc; and
3. liaising with the children’s school (teachers, counsellors etc), the family consultant or other experts engaged in the matter.

They will then bring to the court’s attention any information relevant to the matter.

Whilst children’s views are considered in parenting matters, they will not always determine the outcome. This is because the Act emphasises the importance of the child’s best interests when making decisions and, what is determined to be in a child’s best interests will not always reflect the child’s views.

Generally, the older a child is and, assuming they have a higher level of maturity and understanding, the more influential their views will be on the outcome. Ultimately, each matter will be decided on its individual facts and circumstances.

Are you in the process of working through your parenting matter?  Do you need direction on how to best handle your child’s requests?  Speak with the Sutherland Shire’s best family lawyers, Solari and Stock today.  Contact our team on 02 8525 2700 or click here to request an appointment.

Article written by Kirstin Attard
Image Photo by Vitaly Gariev on Unsplash