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When do kids get to decide who they live with?

When do kids get to decide who they live with?

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When do kids get to decide who they live with?

Lara Tom
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17 July 2018

When working out living arrangements for children after separation, parents will often ask "what age can my child decide who to live with?

This is an unexpectedly complex answer and it really is true that each case is different.  There is no one set age that a child can decide who they live with.  Many people believe that a child will get to choose which parent they live with when they turn 12.  This will not always be the case.

What determines a child's living arrangements?

The children's best interests are the paramount principle in determining what living arrangements there will be for a child.  In deciding what would be in the best interests of a child, regard is given to 16 separate considerations outlined in section 60CC of the Family Law Act.  The child's views are just 1 of 16 separate considerations the court will give consideration to in determining what is in a child's best interests.  Section 60CC(3)(a) provides that consideration be given to:-

"(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views".

How much weight is given to a child's views?

The weight which is given to the child's views will depend on a number of factors, for example:-

  • Maturity - is the child able to give proper consideration to the impacts of their decision?  For example, are they wanting to just live with the other person because they are going to buy them ice cream every weekend or do they genuinely want to live more with that person?
  • Age - although age is not listed as relevant to the weight given to the views of a child, it is certainly true that the views of a 5 year old will not be given as much weight as those of a 14 year old.
  • External influence - has the child formed their view on their own, or has a parent's own views weighed heavily on their own opinions?  Parents regularly speak of a child wanting to live with them, but there are numerous examples of situations where children are shown to have just said something to a parent to try and not upset them.  For example, a child expressing a view in response to a direct question about their living arrangements will be treated with more caution than a child volunteering the information to another adult unprompted on a consistent basis.
  • Sibling relationships - if two or more siblings have very different views about where they want to live, it is uncommon for the Court to make Orders which would place siblings in different households, especially when the children are very young.

It is important to understand that when children get older they will usually make their own decision about where they live, regardless of whether this arrangement is in line with what the parents or the court have decided.  The court is unlikely to force a 16 year old child to live with the other parent if they do not want to and have mature reasons for not wanting to live with that parent.  Counselling tends to be used more as a tool to help manage family dynamics as children get older.

This is one of the most complex issues in determining parenting arrangements and you really should obtain advice from someone who mainly practices in family law.  There is no one size fits all approach.  Contact our experienced family law team on (07) 4963 2000 or via our online contact form if you would like assistance in working out a suitable arrangement for your children.