Can my child decide which parent to live with?

There is a common misconception in separating families that once children reach a certain age, they are able to choose which parent to live with.

While children’s views are of course important to parents, if parents are not able to reach agreement about their children’s living arrangements, the Court will ultimately make the decision and the children’s views will be only one factor which is taken into account in that decision.

This may be concerning to many parents for different reasons, but ultimately the Court will consider the children’s living arrangements being a parental decision, in which adults make the final decision rather than simply following the children’s wishes. That being said, each family will be considered on their individual circumstances, and this can include the age and temperament of the children, together with the living situations in both households.

What if a child has expressed a reluctance to stay with the other parent?

If your child has expressed a reluctance to stay with the other parent, it is better that you explore any reasons behind this reluctance, and discuss this with the other parent so that you can together come up with a plan to assist with a smooth transition for your children. This can include implementing the same bedtime routine in both households, contact with the other parent at the children’s request or where there are more challenging issues that your child has , your family and/or children could engage with a counsellor or psychologist to assist with strategies to support the children. A child’s living arrangements will ultimately be based on the child’s best interests

As children get older, their views and the reasons for their views will be given more weight by the Court, however ultimately the decision to be made about the children’s living arrangements will still be based upon their best interests as set out in Section 60CC of the Family Law Act and which can include relationships with both parents, siblings and extended family members, together with the parents’ capacities to communicate and facilitate the children’s arrangements.

It is important that children understand that although their views will be taken into account, they do not have the final say in what the arrangements should be, and any information provided to children to the contrary can be damaging to the children’s relationships with trusted adults in their lives.

If you would like to speak to one of our specialist family lawyers about your child’s living arrangements, please call us on 03 95960222.

Author: Sarah Pullan, Lawyer & Independent Children’s Lawyer