My child wants to live with my ex, not me. Will the Court consider their view?

By Gillian Coote, Founder and Managing Partner at Coote Family Lawyers

Negotiating children’s arrangements is often the most difficult and painful aspect of a separation. Adding to this, children (particularly teenagers), can be opinionated, especially when it comes to where and who they want to live with.

During a separation and divorce it’s not uncommon for children to express a changing desire to live with one parent over another.  This can be due to a range of factors including living accommodation, proximity to friends and school, family pets, the house rules, freedoms allowed by each parent, or a child simply being too young or immature to reach a well-thought-out opinion.

Having a child express a desire to live with your ex over you can be devastating, but it is sometimes the case that children’s arrangements may evolve over time to meet the changing needs of the child and parents.

When deciding on the best parenting arrangements for children, the Family Law Act says the Family Court must consider what’s in the “best interests” of a child. To identify what’s in the child’s best interests, the Court considers a range of factors, including the views expressed by the child – i.e., how they would like to live between their parents’ homes.

However, the weight afforded to a child’s views is completely dependent on their level of understanding and maturity. By way of example, an emotionally mature 12-year-old’s views are far more likely to be given credence, than the views of an emotionally immature six-year-old.

Age aside, how does the Court determine whether a child is ‘emotionally mature’ enough to form a reasonable view on their parenting arrangements?

What comes into consideration here is whether the child has been influenced by a parent or a third party, how long the child has held their view, and if the child understands the long-term consequences of their decision being accepted. If there is evidence the child has been influenced, or if the reasons for the child’s view are unclear, the Court will be wary of accepting the child’s preference.

Parents should therefore be mindful that the views their child has expressed to them will not necessarily be accepted by a Court as determinative. Their choice makes for only one part of the matrix.  For younger children, the more determinative factors are around their general physical and emotional welfare.  Status quo and stability factor highly after capacity to provide for children’s needs.

It’s not uncommon for children to communicate different things to each parent about where they want to live—especially when they are younger and not emotionally mature enough to reach their own decisions. Under such circumstances, the Court might refer parents and children to a Court Child Expert or a Family Consultant to prepare a Family Report.

The Family Consultant will make recommendations about appropriate parenting arrangements for the child based on a number of factors including child’s views which again depend on their level of maturity and understanding. This family report will then be considered as one part of the evidence regarding what’s in the child’s best interests by the Court.

In situations where there is a risk—such as family violence, mental illness, or drug abuse—the Court may appoint an Independent Children’s Lawyer (ICL) to assist. The ICL might make inquiries with the child’s parents, medical practitioners, and teachers. Some ICLs will speak with the children directly if they believe it is necessary and appropriate to do so.

Once arrangements are in place there are things parents can do to ensure the time they spend with their child at home is enjoyable and fosters a healthy family dynamic.

First consider your environment. Is your living accommodation child friendly? Is it furnished in a way that is appealing to children and how they like to spend time at home? Have you got space for a family pet they can connect with and care for? Have you set appropriate rules, boundaries and do you offer adequate supervision?

Second, reflect on the relationship you have with your child.  How can you be a better parent? Are there ways you can form a better bond with your child?

While child arrangements are rarely set in stone, once final parenting Orders are made by a Court it is very difficult to change them without “a significant change in circumstances”.  What that means is that arrangements can, in certain instances, be reviewed over time if you feel the outcome is not in the best interests of your child.

Creating a strong bond, a safe and appealing environment, and an established relationship with your child will assist in either negotiating a different parenting arrangement, or if necessary, litigating one.