When can my child choose where to live?
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 they think this, the answer varies. Some say ‘my lawyer told me’ . Others report ‘it’s what my sister did’ or ‘my friends told me’.
The Family Law Act (1975) does not specify an age for when a child can choose where to live until they become an adult. However there are general understandings and practises.
Children Under 12yo
Children who are younger than 5yo will usually not be interviewed by Court experts. The exception to this is if they have older siblings. In this case, they may be interviewed as part of their sibling group.
For children older than 5yo, it is common for their opinion to be heard. They might be interviewed alone, or with their siblings. This is left to the discretion of the Court expert.
Children 12 years – 14 years
From the age of 12 years, a child’s wishes are considered. This Court will place some weight on the wishes of the child. This is especially true if they can explain the reasons behind their preference. However, the Court is unlikely to simply make an Order based on your child’s wishes. It is certainly not guarantied that your 12yo child will be able to choose where to live.
From 14yo a child’s wishes carry more weight. A Court expert will listen to your child and 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.
Children from 16 years
From 16yo, Courts are hesitant to make an order unless there is great need or the child has younger siblings. Children of this age tend to vote with their feet.
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 choose, or one parent doesn’t fight the child’s wishes, 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 are able to voice their concerns, participate in conversation about their needs and make their wishes clear. Ultimately, it is parents (or the Court) who make decisions.
Children can emancipate themselves under extreme circumstances. They can leave home and access government payments including living away from home allowance if still at school, from the age of 14 years.