At what age can a child choose where to live?
In Australia, when parents initially separate or later on when separated or divorced parents share custody of their children there may be a time where a child expresses a desire to live with only one parent.
For parents on both sides of this request or refusal, the question that we’re often asked is “At what age can a child choose where to live?”
On this page you can expect to learn the following:
- When can a child refuse to see a parent?
- When can’t a child refuse to see a parent?
- Can a child be forced to see a parent?
Whether you are recently separated or have been co-parenting for some time, this can be an incredibly tricky path to navigate. So, which parent are you in your situation?
Are you the parent whose child is saying they don’t want to live with their other parent?
or….
Are you the parent who is being told that their child doesn’t want to live with them any more?
I am the parent the child wants to live with
If you are the parent the child has expressed that they want to live with more permanently than the current arrangement, this may come as a shock or an inevitable scenario.
We usually hear from parents like you who come to us with concerns like these…
“My daughter doesn’t want to see her dad any more”
“My son doesn’t want to live with his mum anymore”
“My child doesn’t want to swap houses anymore”
So, where to from here? Do any of the following sound like your position currently?
- You want to support your child in their decision & you are happy for your child to live with you more permanently;
- You understand the challenges that living between two homes is presenting for your child & want to renegotiate the current arrangements to accommodate their changing needs;
- You have Parenting Orders in place and want to know the best way forward to avoid breaching the Orders and creating legal issues;
- You feel torn – you don’t think this is the best way forward, but also don’t want to put your relationship with your child in jeopardy by not supporting their wishes; &/or
- You are open to investigating ways to help manage your child’s current wishes, with a goal to support and encourage the restoration of a healthy relationship with their other parent; or
- You believe it is in your child’s best interests to no longer see or live with your child’s other parent.
Whatever the circumstances, you should know more about what Australian family law says about parenting arrangements and the best interests of children, as explained below.
I am the parent the child does not want to live with
If you are the parent who has been told your child wants to spend less time or no time living with you, do any of the following positions reflect your current thoughts?
- I think my child thinks they need to “pick a side” in our separation/divorce;
- I’m thinking this might only be a phase, but concerned that it might not be and “leaving it be” could actually further the divide in my relationship with my child;
- I’m looking to find ways to help improve and restore the relationship so they can eventually return to living with me again;
- I am doubtful that what my child is expressing or I am being told by the other parent, is true; &/or
- I have concerns that the behaviours of my child’s other parent has contributed to their resistance or refusal to live with me.
Being told your child doesn’t want to see or live with you any longer is often distressing. Knowing whether this situation is genuine, whether it is “something that will blow over” or “they’ll grow out of it” or whether there is something else at play, can be hard to truly know in some families.
Read on to learn more about this situation you have found yourself facing, what the law says about parenting arrangements as well as other tips to help you right now.
What Australian family law says
A child rejecting or refusing a parent can be distressing for all involved. Where the child’s refusal or rejection is prolonged, including in situations where there are no concerns or risk of harm to the child, it is important to have some insights into Australian family law and how to avoid these situations becoming more drawn out, distressing and unresolved.
Best interests of the child
Of paramount consideration in all family law related matters is a term used a lot in the legislation – “the best interests of the child”. While as a parent you will naturally believe your decision making is always in the best interests of your child, the law often surprises parents in unforeseen ways.
The primary factors Australian Courts consider include:
- The safety of each child & anyone caring for the child/ren (taking into account ADVO’s & FVO’s)
- The cultural, developmental, emotional and psychological needs of each child
- The ability for one or both parents to protect & care for the child
- The views expressed by a child, depending on their age, maturity & understanding
- Any other factors that relate to the child/ren.
There is no longer a presumption that a child should have a relationship with both parents or significant people. Safety is the first consideration, which it has always been, however the law has now clarified this by putting safety as the very first item of consideration.
Many parents do not ever imagine they will ever end up in Court, but sadly too many end up there anyway. Blindsided because they could never have foreseen what can happen from here.
If you are separated or divorced from the child’s other parent, you may have Parenting Orders in place. Parenting Orders are different to a parenting plan or other informal agreement. Parenting Orders are legally enforceable agreements. So, when we’re asked the question “can a child refuse to see a parent”, if there are no Parenting Orders finalised, then that is a possibility.
Read on directly below if you have Parenting Orders in place. If not, jump to this section.
If you have Parenting Orders
If you have Parenting Orders formalised by the Family Law Court that allow for shared care of your child/ren, then there is a requirement for those Orders to be followed. That being said, for the parent whose child is expressing a desire to stay with them, or is displaying fear or distress about continuing to live with the other parent, that is often easier said than done.
Parenting Orders cannot be changed easily. For the Court to consider changing Parenting Orders they require an application with evidence of “a significant change in circumstances” since original Orders were made. To determine whether an application is possible, you must speak to a family lawyer to learn what may be possible based on the individual age and needs of your child/ren.
Considering the importance and seriousness of what is happening with your child, seeking support for them and yourself as you navigate what is without doubt an incredibly challenging time, is essential. While many people in your shoes seek a psychologist or counsellor for their child at this point, legal advice is essential too,for reasons we will explain below.
If you do not have Parenting Orders
If you do not have Parenting Orders in place, and you want to help your child to maintain their relationship with you (or both parents), it can be important for the future of your relationship to get the wheels in motion. Parenting arrangements should always be negotiated with the support of your own independent family law advice, and apply to the Court to have them formalised and enforceable.
If a child is expressing that they no longer wish to see or stay with a parent, age is taken into consideration. Generally speaking, for children 14 and over, their opinion will be taken into account more so than a 10 year old. However, for more accurate insights and advice based on the ages and specific needs of your children, only an experienced family lawyer will be able to give you clarity on this.
Can a child be forced to see a parent?
As family lawyers we often provide recommendations for psychological support, for parents and children, which is often an vital element in effectively navigating situations like this.
It might be the case that forcing a child to see or live with a parent is not in their best interests at that point in time. If the goal is to get to the bottom of what has led to the child’s decision a professional such as a child psychologist may recommend individual therapy sessions before reunification, or other avenues of investigation and/or support. There are so many elements that must be considered, a number of which even the most educated and informed parents aren’t aware exist, which is why early advice is important before making any decisions.
What age can a child choose where to live? Time is of the essence.
If things don’t end up “returning to normal” as hoped and getting legal advice now seems urgent to get your time and relationship back on track, it is common to need to apply to the Court to start the process to restore your time with your child. However, sadly, seeking legal advice when it’s at the point of urgency, can be problematic in itself. It can take considerable time between applying and having your concerns heard in Court, further delaying time with your child.
Another issue that we sadly see parents inadvertently create for themselves is due to holding off on legal advice. There is a point in time where the Family Court seeks evidence of the events leading up until that application is made. And, if the evidence also shows that you are the parent who didn’t seek legal advice or take steps to restore the relationship and care arrangements early, you run the risk of the Court perceiving this as inaction, reflecting poorly on you as a parent. And, if the child has had little or no contact with you for a prolonged period of time, the chance of you returning to the shared care time you had, might not be suitable (in the best interests of the child), depending on the circumstances.
For parents who want to learn what can be done to help restore the relationship and get shared care arrangements back on track, it is often the case that one or both parents seek a counsellor or psychologist to help their child. What is often not done, at this early point, is the advice from a family lawyer. If people seek this advice early from family lawyers with extensive experience in managing issues like this, they can minimise the catastrophic risks that all too often eventuate.
For the parent whose child is expressing a desire to stay with them, there are sometimes concerns that the other parent is contributing to this rejection, sometimes incorrectly characterised as parental alienation.
If you are a parent being accused of parental alienation, visit this page.
Related:
Coparent not complying with Court Orders or parenting plan?
Child Recovery Orders: Steps to take when your child is taken interstate or overseas
Parenting, protection orders & reporting family & domestic violence (Canberra, ACT & NSW)
Relocating with a child after separation: What to know before moving
We help parents on both sides of parenting matters like these. Reach out to our team at Nicholls Anzani to explore your options and take pro-active steps to resolution on (02) 7259 4130.
Disclaimer: The information in this article is general in nature and is not a substitute for independent legal advice from a family lawyer.
This information is correct as of the date of publishing and is relevant for people in these states and territories of Australia – ACT, New South Wales, Queensland, Victoria, Tasmania, Northern Territory and South Australia.
