Can My Child Decide Which Parent They Live With?
When parents separate, it can be hard to decide what care arrangements are right for the kids. Many parents like to be guided by what the child wants when making these decisions. However, what happens if the family ends up in court and a judge decides?
The Court must make orders that are in the child’s best interests. The Family Law Act sets out a list of considerations for the Court to apply when working out what the child’s best interests are. One such consideration is “any views expressed by the child”. This means that the Court will consider what the child wants, but it is only one of a number of factors.
The weight that the Court will give the child’s views will depend on:
- The child’s age;
- The maturity of the child’s view and reasoning;
- Whether the child is able to understand the impact that adopting the arrangement they want would have; and
- Whether the view appears to be held independently, or is influenced by a parent.
Kids don’t appear in court to tell the Judge what they want directly. Instead, a Child Impact Report (if early in the court proceedings) or a Family Report (if later) will be prepared. This involves the Report Writer, who is a psychologist or social worker with specialist training in child issues following family breakdowns, interviewing the kids and parents. The Report Writer will ask the kids about what they want and what life is like in each parent’s household. What the kids tell the Report Writer will then be included in the report for the Judge to read.
If there is an Independent Children’s Lawyer (ICL) involved in a parenting matter, they must also speak to the kids and give them the opportunity to express their views, unless they are under five years old.
If you would like more information on anything in this blog, please contact Christine Mayes in our Family Law Team on 4417 4417.