My Kids are 12 – they can decide – can’t they?

We know it is our role as parents to raise children to ultimately become independent adults.

However, what happens when parents separate and the children are not yet adults but feel strongly about which parent they spend most of their time with?

The question is a difficult one, with the answer being, as it often is in family law matters, “it depends”.

Courts are obliged to make Orders that are in the best interests of children, and wherever possible, the Court implores parents to try and make those decisions between themselves without needing to use a Court.

When considering what is in the best interests of the children, various factors are considered including the benefit of a child having a meaningful relationship with both parents and the need to protect them from harm.

However, additional to those primary considerations are factors such as the child’s views, including their maturity and understanding.

Some children have a great deal of maturity and understanding about the impact certain major decisions may have on their lives, and other older children have less mature ways of approaching things. For example, a 12-year-old may say they would prefer to spend most of their time at a parent’s place because that parent does not have a routine, does not require homework, and provides them with the preferred food of that child. This would not be a view that a Court would consider persuasive in determining their best interest.

However, where a child prefers to spend more significant time with a parent based upon a feeling of safety and security, the provision of their basic needs including time and space to undertake important homework, or a strong desire to be removed from conflict that they may be exposed to between parents, these are more significant reasons to follow the views of a child. Protecting a child from taking matters into their own hands and putting themselves at risk, by running away, for example, is also a factor courts will consider.

If you require advice about how to consider your child’s views when being expressed in accordance with a particular preference, contact Catton & Tondelstrand Lawyers for a free confidential initial consultation on 07 5609 4933.

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