What Age Can a Child Decide to Live with Either Parent?

Date Published: November 11th, 2020. Updated July 1st, 2021.

The short answer is the child does not make the decision to live with either parent.

The long answer is that when making decisions about what is in their best long term interests, children may not be able to make objective, rational and well thought out choices about which parent is best placed to meet their needs (anyone with a teenager can attest to the volatility and ridiculousness of some of their decision making).

As a society, we have determined that before the age of 18, children do not have the capacity and maturity to make adult decisions. Hence why, among other things, children are not permitted to vote, drive or drink alcohol.

If parents cannot agree on parenting arrangements for their children, they often revert to a child custody lawyer to assist them. The Family Law Act 1975 (Cth) requires the court to consider the child’s best interests as its paramount consideration when determining who a child will live and how much time they will spend with the other parent.

Common Myths About When Can a Child Decide Who to Live With

There is a great deal of misinformation and myth relating to family law, the child’s age and the ability to choose which parent to live with. Before you research any information on children and family law, it’s best to seek legal advice to make sure you are not relying on legally incorrect information.

It is now widely accepted that a child is not an object to be owned and “shared” by parents. A child is their own person. As they grow and mature, they must continually re-assess and re-negotiate their relationship with each parent. As part of determining what is in a child’s best interest, the court will want to be informed of a child’s wishes and views regarding the parenting arrangements after separation.

If you are researching and looking for answers, only use content from a reputable source. Do not use news or social media as a source of information. These sources of information are not accurate and in many cases politically motivated or content published to attract attention to the news article or social media page.

You may also hear myths or misinformation from well-intentioned family or friends that you think is correct but in reality, is false or misinformation they believe to be true.

How Does a Court Decide Who the Child Is to Live With?

The court will give weight to a child’s views based on their level of maturity and understanding. For example, the court has said the opinions of an 11 and a half-year-old child cannot be ignored, but that does not mean that the child’s every whim must be acted on. In another case, a 9-year-old was ordered to spend overnight time with a parent even though they were adamant they did not want to.

The court determined that it was not in the child’s best interests to stop contact between the parent and child and that they should be given an opportunity to repair their relationship. In the 1978 case of Von Stieglitz (1978) FLC 90 – 408, a 16-year-old was ordered to spend time with the mother because the child did not have a valid reason for not wanting to see her.

A child’s views are just one piece of the complex puzzle the court must consider when determining parenting arrangements. The child’s views, and the weight to be given to them, must be balanced against other considerations, including the benefit to the child of having a meaningful relationship with both their parents and the need to protect the child from harm. Section 60CC(3) of the Family Law Act (Cth) includes the child’s views as just one of 14 broad issues that the court must consider.

What Points of View Do the Courts Consider?

The family law courts state that every child has the right to enjoy a meaningful relationship with both their parents and to be protected from harm. You can find a summary of the main points that are:

• Parental responsibility
• Parenting time
• Best interests of the child
• Financial responsibility for children
• Your child’s wellbeing

Every family will have a different set of circumstances to the next. The courts will decide in the child’s best interests and ensure each parent is treated equally under the family law act. It is vitally important to make sure you are informed about the child’s rights. What decisions they can or can’t make and what is not considered in their best interests.

What is also important to remember is to act as soon as possible and not to let many weeks and months pass by where you are not in regular contact with your child. Your parenting roles and responsibilities can become increasingly challenging as a consequence and your role as a parent may decrease in the mind of your child over time. It can take a number of weeks to put all the parenting arrangements or legal arguments in place. regardless of whether you need to go to family court or are arranging a parenting agreement.

When Should You Seek Legal Advice?

If you are feeling a high level of anxiety about your legal rights relating to child custody or visitation, it’s best to seek legal advice as soon as possible. Dealing with the uncertainty of not knowing where you stand, in this often emotionally stressful situation can impact your mental health, work and relationships with other family and friends.

It’s best to know your legal rights as soon as possible to alleviate any uncertainty or misconceptions surrounding family law and the rights of the child. Once you have spoken to a legal professional, you will also benefit from knowing what is achievable and what the next steps are in your situation.

If your child has strong views about which parent they want to live with, or you would like to discuss your options for child custody arrangements, please contact one of our team members on 03 9070 9839 or at info@sagefamilylawyers.com.au