Separation: Can a Child Decide Where to Live?

It’s hard for parents and children when two people are separating. Parents sometimes struggle to reach an agreement on what is best for their children and we are often asked ‘can a child decide where to live?’

The judges in the family court try to make orders that are in the best interests of the child. They want to make sure the children are safe, healthy and happy. So they will try to make arrangements that will be of the most benefit to the children.

The judges recognise children sometimes have views on what should happen after their parents separate. They will take the wishes of the child into consideration when they make orders. However how much weight they give to this depends on the age and maturity of the child.

How does a child share their wishes with the family court?

The main way the judge is able to obtain the views of the child is to appoint a family consultant to meet with and talk to the child. The family consultant will also meet both parents. They will then provide a report to the judge that sets out the views of the child and the parents. The family consultant may also provide a recommendation on where they believe the child should live and how much time they should spend with each parent.

Sometimes the court will also appoint a family law solicitor to act on behalf of the child. This family law solicitor is independent from the lawyers retained by the parents and is known as an independent children’s lawyer. The independent children’s lawyer will meet with the child and will then inform the court of the child’s wishes.

The family courts want to minimise any distress and disruptions for the child, so the child will not be asked to attend court to give evidence.

What does the judge do after hearing the wishes of the child?

The judge is required to make orders that are in the best interests of the child. The judge will consider the wishes of the child, as well as other factors such as the ability of the parents to care for the child, and will then make a decision as to what is in the best interests of the child.

Sometimes the court will determine that what the child wants is not in their best interests. For example, a child may express a wish to live with a particular parent but evidence has been presented to the court to suggest that the parent has a history of abusing the child. The court may determine that there is a safer alternative place for the child to live.

Every case is different and the courts will consider the individual circumstances of each family when they make orders. It is important to seek legal advice from an experienced family law solicitor in relation to these matters.

Where can I get more information?

Wollongong City Lawyers has family law solicitors who can provide advice on all matters, including children’s issues. Contact our office to discuss your matter.

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