This is a complicated issue. People often tell me that 12 years old is when a child can legally choose where to live. When I ask why that is their belief the answer varies from ‘my lawyer told me’ to ‘it’s what happened in my sister’s family’ to ‘all my friends told me’.
The Family Law Act (1975) does not specify an age for when a child can choose where to live, however there are general understandings and practises.
From the age of 12 years, a child’s wishes are considered – just considered. It is no guarantee that your 12yo child will be able to choose where to live.
From 14yo a child’s wishes are listened to and the court will work hard to meet the needs of the child. Note – needs NOT wants. This means they will address the underlying issues of why a child is preferring one parent or household over another. Again, it is not a guarantee that a 14yo child can choose where to live.
From 16yo, Courts are resistant to make an order for a child of this age unless there is great need for an Order. Children of this age tend to vote with their feet and honestly, this is a really, really fine line.
HOWEVER, if you’re not in court, you can agree to anything by consent. If a child of 12 wishes something to be one way and the adults allow that child to dictate, or one parent doesn’t fight the child, then the child usually gets what they want.
In cases where one parent is backing a ‘child’ to make their own decisions and one parent wants the parents to make those adult decisions, then there’s no ‘age’ under 18yo, that a child can decide. Parents decide. Judges decide. Children don’t decide.
Children can emancipate themselves under extreme circumstances, leave home and access government payments including living away from home allowance if still at school, from the age of 14years.
Depending on the age of your child, what they think and how they feel might be able to be
considered when decisions are made regarding how much time they will spend with each parent.
Family Report Writers will generally interview children older than 5 years and will often observe all your children with you, their other parent, and maybe extended family members and step parents and step siblings.
The degree to which your child’s opinion is considered depends on their age, their ability to understand the consequences of their choices and whether they’ve been coached to come to the opinions and feelings they have.
Just remember: when your daughter is 14yo and clashing with you about her boyfriend, her curfew and her skirt length, do you want her other parent to support her to resolve the conflict with you or do you want a situation where her other parent encourages her discontent in order to gain more time? Sometimes and certainly only where it’s possible, a better option is for the relationship between the child and parent to improve through counselling or other means, rather than attempting to remove the relationship to reduce the conflict.
Of course, the safety and well being of your children is the most important consideration. There are behaviours and attitudes that are unacceptable and once crossed are difficult to come back from. In these cases, once a child reaches adolescence their opinion is a much stronger voice with professionals and the court.