Posted on 04 Jul. 2016
When can a child decide who to live with?
By Slater and Gordon
When is my child able to decide for themselves about who they live with? At what age can a child’s views be more influential than that of their parents?
The weight given to the views of children in parenting proceedings depends on the age of the child but importantly, it also depends very much upon the maturity, insight and understanding that particular child has.
There is a common misconception that in Family Law parenting disputes about with whom a 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 where a child is able to ‘vote with their feet’ so to speak and place themselves physically where they want to be. That time is not attached to a specific age.
Parents, caregivers and allied health providers, ought to avoid giving children the impression that the child’s decisions 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. If the advice has come from a counsellor, it may disrupt the rapport a child has built with the counsellor and interfere with the therapeutic intervention.
How can you assist in these situations?
Explore the reasons behind the concerns a child raises about spending time with the other parent. Is a 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 – residential parent of a school aged child. A counsellor might assist by assisting a child to develop a sense of time, to understand that they will see their primary care giving parent the following day. 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 the noise from a child’s bedroom window, or social factors such as not liking or even not knowing a step sibling at the child’s second residence? Things which can be remedied.
I have worked with families in which an older child is at an age where their resistance to spending overnight time with a parent is given a great deal of weight but a younger sibling who is also resistant, has not yet reached an age where their view is determinative. The older child is able to stay with the preferred parent but the younger child is not.
These circumstances are difficult to navigate. It is difficult for a parent who has different arrangements for each of several children but it is more difficult for a child who has to adapt to living arrangements partly separated from a sibling who is usually a comforting presence (in spite of frequent bickering). The Court will be reluctant to separate siblings who 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 the child may have gleaned, possibly subconsciously, from their primary care giver who may themselves 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?
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 parent, rather than from the child themselves. The Court will look beyond a self-serving statement made by one of the parents to try to find some other evidence of the child’s view in order to reach a decision. In litigated parenting disputes, this might involve the Court appointing an Independent Children’s Lawyer (“ICL”), to give an independent view of what would be in a child’s best interests. An ICL however, does not necessarily 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.
A social worker, psychologist or other allied health provider can assist a child by taking detailed and comprehensive notes of their intervention or treatment. The observations recorded in your clinical notes may later be brought before the Court in an attempt to vary or set aside Parenting Orders.
Try to assess the child’s capacity to understand that there might be two sides to parental conflict. If you are of the view that a child has the maturity and insight to appreciate their circumstances and nevertheless does not wish to comply with Court Orders, the family may be assisted by obtaining legal advice to discuss the available options.
Protecting children from unacceptable risk of harm, neglect and abuse is an obligation owed to children by as all and if you believe your child is at risk with another parent or care giver you should act immediately and thereafter consider obtaining advice.
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