16 Nov Child Custody – do kids decide where they live?
One of the most common questions I am asked is “What age do kids get to decide where they live?” when parents separate. The answer often surprises parents embroiled in high conflict and when I say “18”. There is an urban myth that when kids turn 12 they suddenly get the right to decide where they live. WRONG! But think about it: What age do you think it’s appropriate for your kids to make such life-long decisions such as:
- If they should star to drink alcohol or smoke cigarettes?
- Whether they should leave home.
- Whether they should start their own family etc.
While it’s not quite that simple, when the Family Law Courts are asked to decide the living arrangements for children there are a number of significant factors that must be taken into account. The first dilemma that the Courts must face is how to balance the rights of children to have a meaningful relationship with both of their parents versus the need to ensure children are safe. Where there is a conflict between the two, the safety of the children prevails. These competing issues are known as the primary considerations.
This can often see children spending time with a parent in children’s contact centres or under the supervision of an agreed supervisor where there are allegation of violence, drug and alcohol abuse and/or mental health issues, particularly in the interim (or initial stages) of proceedings in the Family Law Courts until further evidence is available to make long-term parenting Orders (after a final trial).
Whether on an interim or final basis, the views of children will be taken into account in parenting (or child custody) cases but a child’s views are known as a secondary consideration. In other words, once the primary considerations are considered, there are a number of other issues including children’s views which are taken into account in deciding child custody or parenting cases. These secondary considerations are important but are subordinate (or secondary) to the primary considerations (protection from violence and maintaining a relationship with both parents). When considering a child’s views, many things must be considered. Firstly, children are never witnesses in a parenting case. Their views are assessed by:
- The process of Family Reports being prepared by a Family Consultant, (a Court appointed expert with a psychology or welfare background) who will interview the children and/or assess a child’s interaction with each parent.
- The views of an Independent Children’s Lawyer (an independent lawyer appointed by the Court to gather and obtain information and evidence and form a view as to what is in the best interests of the child).
- Other secondary information such as documents produced under subpoena (a Court Order to produce documents) from agencies such as schools, medical practitioners, police, FaCS etc.
The amount of weight the Family Law Courts will place upon the views of a child is best described as a continuum. A very young child’s views (which could likely be influenced quite easily) will be given very little, if any, weight. A teenager’s views will, in the “usual” case, be given very significant weight; particularly if the child can clearly and articulately describes as to why they have a particular preference. Though, some caution must be taken when assessing a child’s views regardless of its age given such views may be influenced by the following, irrespective of age:
- Parental alignment
- Mental health, developmental or other issues
Generally, the older the child, the greater weight will be placed on their views, provided those views are deemed as genuine and free of undue influence. Rarely, would a Court deciding a parenting matter, not heed to the views of a late teen whilst on the other hand, the views of a very young child would be given little, if any, weight.
In short, each case is decided on its own unique facts but children do not decide parenting cases Children’s views are taken into account along with many other significant issues in deciding what is in their best interests and where they should live.
So if someone tells me “a child gets to choose where they live when they turn 12”; my response is usually: “so at 12 you are prepared to also let your child decide if they are to quit school, begin drinking alcohol and engage in promiscuous behaviour?”. Not surprisingly the answer is usually a resounding “no”. The same goes for as to where a child should live. This is a decision that parents should make together in a logical, informed and child focused manner.
Family Law cases are determined on their own merits and while each case has its own unique circumstances, where a child lives is a matter of parental responsibility. If parents are unable to decide this issue themselves, it will be the Court exercising its jurisdiction under the Family Law Act (1975) which decides where their children shall live, not the children.