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Can My Child Decide Who They Want to Live With?

A frequent question many of our clients ask is “Can my child decide who they want to live with?”
Unfortunately, the answer is not clear cut and your child’s wishes are just 1 of 16 factors considered by the court in determining the best interests of your child.

That being said, there is no statutory requirement to ascertain the views of the children and the court is not, of itself, required to ascertain the views of the child.

The primary considerations determining the best interests of the child are the need to protect the child from harm and the benefit of the child having a meaningful relationship with both parents, any views expressed by the child are secondary considerations.

How does the court “hear” the views of your child?

It is uncommon for the judge to speak directly to the child in relation to their views or wishes.

Instead, the views of your child are reported to the court through a Family Report, Single Expert Witness Report or Child Inclusive Conference Memorandum.

These reports are usually written by a child psychologist or social worker or some other independent party such as a family consultant who will meet with your child. The report writer will assess your child’s understanding of the current parenting arrangements, their level of maturity and capacity to make decisions.

The court may also make an order for your child’s interests to be represented by an Independent Children’s Lawyer, who is required to put your child’s views before the court.

What weight will the court apply to your child’s wishes?

The weight the court will apply to your child’s wishes is dependent on the individual circumstances of your case and may depend on the following factors:

  • Your child’s age, maturity and understanding – an older child’s wishes may be given more weight as they will be considered more mature and have a greater capacity to express input into decisions that affect them although there is no set age a child must be to have their views taken into consideration
  • The strength of your child’s wishes
  • The duration that your child has expressed those wishes
  • The level of your child’s understanding as to the long term implication of their wishes

That being said, the views of your child will be treated with some caution because children may tell parents “what they want to hear” and may not share the same wish with both parents.

Children can also be influenced by the views of their parents and children are often not mature enough to form a well reasoned view in relation to their future circumstances.

Contact Chatswood Family Lawyers today for help

Parenting time issues can be stressful and complex, so you need an experienced family lawyer who can present your side of the case in a clear and convincing manner. Chatswood Family Lawyers advocates for parents seeking a resolution to visitation disputes throughout the North Shore, Greater Sydney and its environs. To schedule a consultation, call us on (02) 9412 4500 at our Chatswood office or contact us online or by email at enquiries@chatswoodfamilylawyers.com.au.