Sad kid with mum

Do the Kids Get a Say About Which Parent They Live With?

  |   Family Law

There is so much to think about following separation. It can be quite challenging to face all of the decisions that need to be made, especially if differences arise on the big issues.


In the midst of sorting through an array of emotions, finances and property-related issues, a key question for parents will often be what happens about the children? And more specifically – do the kids get a say about which parent (or indeed both) they live might with?


In sorting through the complex area of children’s wishes regarding residential arrangements, it is important to keep in mind how the courts are likely to deal with children’s opinions.


The central principle


At the heart of all child-related legal matters is the core concept of ‘the best interests of the child.’ Parents, carers, courts and counsellors are all obliged to keep the welfare of any children as the paramount concern in decision-making. In fact the rule is also referred to as ‘the paramountcy principle’ for this reason.


The idea of the child’s best interests is deceptively simple. Many parents think that their own opinion on this is obviously correct. But for some people, it can be difficult to be told that what they think is right for the kids is not exactly ideal in the circumstances.


Other parents or carers think that asking the child what they want will solve the problem. This can certainly assist in the decision-making process – but won’t be the only relevant consideration. The courts are very keen to see children continuing a loving relationship with both parents, with these important adults providing safety and sharing responsibility.


Age issues


A child’s wishes are of course important to consider. How these preferences might be expressed can vary considerably according to age and maturity. Even babies and small children have the ability to communicate comfort or distress regarding their situation, company and surroundings. Regardless of expressed wishes, courts will often order that very young children reside with the parent who they are closest with physically and emotionally on a daily basis.


For many school-age kids, it can be best to establish two homes where the child is safe, provided for and feels at home. Shared care between such residences is often appropriate. Even if the child spends more time at one place, both should provide a nurturing atmosphere.


It is reasonable to give more weight to the opinion of an older child. Children in their teens may have valid practical reasons for wanting to reside with one parent. These reasons could include proximity to school, activities and friends, as well as a settled place to complete homework.


Parking parental emotions


Above all, a child’s choice of residence (main or shared) should not be tainted by the often turbulent emotions that can arise after separation. Parents sometimes forget that children have keen abilities to see, hear and sense negative opinions about the ex.


How this can impact upon a child’s wishes about residence can actually be quite sad. For example, if a parent has been crying, distressed and speaking in a negative way about the ex in front of the child, any response to a housing question would almost certainly be coloured.


Sometimes to please such a visibly distressed parent, children will feign or exaggerate dislike for the other parent, refusing to live at their house. If we think this through, the child hasn’t really expressed a genuine wish. They have in fact tried to reduce the emotional pain perceived in their parent by saying ‘the right thing.’


Medical and psychological professionals confirm that any moulding of a child’s wishes in this way (conscious or unconscious) can lead to long-term difficulties. For this reason, it is vitally important to make such decisions in a calm and selfless way. If finding enough resolve to keep emotions in check seems impossible, there are excellent family centres and dispute resolution services to help parents navigate the residence question.


A delicate mix


There are no easy answers about whether or not the child’s wishes around housing should be considered. Older kids with school and sports commitments might well have their choice of housing and their visiting arrangements respected. Parent should get early advice to see if their child falls into such a category.


Younger children might express a particular preference at the point of separation, but we need to be careful that this is tempered with consideration of other factors such as current levels of discord, animosity or confusion. And for kids in the middle age range, the best option will necessarily be made on a case-by-case basis.


When asked to make any choices after separation, many children can still be in a state of confusion – no matter what they show on the outside. Parents can assist by listening to their kids’ preferences about where to live, but by also taking account of age, maturity, current behaviours and, at the end of the day – the best interests of the child.


Compassionate and professional family lawyers can help you to navigate any challenging issues that you might be facing.