Can a Child’s view effect who gets custody?

If you’re a parent looking to get partial or full custody of your children, you may be interested to know how your child’s views and preferences are considered by the family courts. Find out from our child custody lawyers northside.

Child Custody Lawyers Northside

Child Custody Lawyers Northside

The situation

A recent High Court decision this year considered parenting arrangements where the children had  expressed that they wanted to live with their father. In that case, the father had initially taken his two sons on a holiday from Australia to New York. A week and a half into the trip, the father decided he wished to stay in the United States with the boys and not return to Australia. The mother filed an application seeking that the children be returned to Australia.

The parents had already made parenting orders a few years earlier which provided both parents with equal shared parental responsibility for the two boys and their daughter. That means that they shared responsibility for long term decisions effecting the children.

As part of those orders, the children would live with the father and the mother as agreed between the parties or at the children’s own election. The orders allowed for the children to travel overseas for a holiday with a parent but did not permit a child to decide, independently of his or her parents, whether or not the child would live in Australia or abroad. The father was in breach of the parenting orders then by keeping the children to live with him in New York.

The children had expressed that they wanted to remain with their father in New York rather than with their mother. So, how did the courts decide where the children would live?

What did the courts decide?

The primary judge in the matter ordered that the boys be returned to Australia. Once the boys returned home, the orders (as agreed by the mother) allowed the boys to choose from a number of options, where they would live. These options included living with the mother, living in accommodation provided by the father together with paid supervision services or, living with one of their friend’s parents who had agreed to accommodate the boys. If the father chose to return to Australia, the boys could also choose to live with him. These orders gave weight to the children’s preference as to where and with whom, they wanted to live.

Why do the courts consider the child’s preference and how much weight is given to it?

In making orders, the Family Court was required to consider the best interests of the children. The views expressed by the children were just one of the many factors considered by the court in deciding what is in the best interests of the child. The level of importance to be given to a child’s view will depend upon factors such as the child’s age or maturity, and level of understanding of what is involved in the choice they have expressed. A child may not, for example, appreciate the long-term implications of separation from one parent or the child’s siblings.

The primary judge in this case had made an interim order that allowed the children to live with a third party, someone other than their parents. The boys had expressed views that suggested at least one or both of them would not want to live with their mother. The court allowed other mothers of longstanding friends of the boys to be appropriate guardians. In deciding whether these other parents were appropriate guardians for the children to live with, the court considered whether they could offer “nurturing and care”, implement arrangements for monitoring homework, transportation to and from school and the type of sleeping arrangements that the boys would be given.

These orders were only interim orders however. The court found that more information would be desirable before making a long term parenting order in favour of third parties. In circumstances of urgency however, there was sufficient evidence before the court to make interim orders which included the option for the boys to live with one of their friend’s parents.

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