Parenting Arrangements: Can a Child Decide Which Parent to Live With?
Going through a divorce or separation and determining parenting arrangements is a difficult time for families, and the breakdown of a relationship has the potential to seriously impact any children involved.
When it comes to negotiating parenting arrangements after a split, it is important to put the child’s needs first and to fully understand your legal options. Deciding which parent a child will live with can become a contentious issue, and if parties are unable to reach an agreement themselves then they will often turn to the Family Courts for a legally-enforceable parenting order which outlines arrangements regarding the children.
Here, we answer some common questions regarding parenting arrangements.
How does the Court Determine Parenting Arrangements?
In deciding whether to make particular parenting order in relation to a child, a Family Law Court must regard the best interests of the child as the paramount consideration. In determining what orders might be in the best interests of a child, the Court will take into account a number of factors which are specified in Section 60CC of the Family Law Act (1975). There are two primary considerations and a number of additional considerations.
The primary considerations are:
a. The benefit of the child having meaningful relationships with both of the child’s parents
b. The need to protect the child from physical or psychological harm as a result of abuse, neglect, or family violence
Under the Act, the Court must give greater weight to the need to protect a child, if there is any conflict between the two primary considerations.
Aside from the primary considerations mentioned above, a Court will also take a variety of additional factors into account when determining a parenting arrangement, including:
- The practical difficulty and expense of the child spending time with each parent;
- The capacity of each parent to provide for the child’s physical, emotional and intellectual needs;
- The extent to which each parent has participated in making major decisions about the child’s life thus far;
- The likely effects of changes to where the child is staying and the child’s relationships with other important people including grandparents and relatives
All of these factors play into the Court deciding where a child will live, and how much time they will spend with each parent.
Can a Child Choose Which Parent They Live With?
Despite a common misconception that a child can decide who they live with at age 12, there is in fact no set where a child can legally dictate parenting arrangements.
While a child’s wishes are not primary considerations of the court, their desire to live with a chosen parent is still taken into the court’s consideration along with the aforementioned factors. The level of weight attributed by a Court to a child’s wish to live with a particular parent, will depend on their level of maturity and understanding of the situation.
Typically, children are not involved in Family Court proceedings except in specific circumstances. Common ways in which the Court will seek to ascertain a input is via a Court Consultant, Counsellor, Psychologist or Therapist who is appointed by the Court to work with the child and/or the family. More information about Family Reports and Child Inclusive Conferences can be located on the Family Court website.
Trying to Create Parenting Arrangements?
Whether you are creating parenting arrangements outside of the Court or applying to a Family Court for parental orders, we can help. It is important that each parent understands their legal options and obligations in respect of parenting arrangements from the outset.
At Pullos Lawyers, our experienced family lawyers are able to assist you in pursuing a parenting agreement which is in the best interests of yourself and your children. If you are able to reach an agreement with your partner then we can help develop a parenting plan or consent orders, and if you decide to go to court we can represent you in court and guide you throughout the court process.