We get asked this question frequently by our family law clients. The first thing we want to say is that, the child shouldn't have to decide and should not be asked to decide, ever. Even when the Court appointed specialist meets with the children to ascertain what is in their best interests they do not ask the child to choose.
Divorce can certainly bring out the worst in people and in certain situations a child needs to be protected, but in the vast majority of cases the child will benefit from a positive relationship with both parents that is encouraged by both parents. Having to choose between their parents is incredibly traumatic.
The Family Court website states that you should not make the children choose between parents, they should be allowed to love both, and you should not involve the children in your argument with the other parent. Asking a child to choose the parent they will live with is of course including them in your argument regarding when and how the children will spend time with each parent. If they choose one they automatically reject the other parent, and they are aware of this. Children understand more of what is going on than you think.
So our first piece of advice is to never ask your child that question (who do they want to live with). If the child is in danger, then you as the parent should move to protect them. If the child is not in danger, and it is a question of making a workable arrangement with the other parent, then you adults need to sort that out yourselves. If the other parent is being unreasonable, asking the child who they want to live with is not going to make the other parent reasonable, in fact, it is likely to result in the other parent putting pressure on the child to say that they want to live with them.
In short, don't do it to your child.
What if the child says that they won't go?
There are two ways to look at the question when is the child old enough to decide. On one view of things the Family Court has jurisdiction up until the child is 18 years old, so when they are 18 years old.
On another view, the Court is required to always act in the child's best interests and the legislation states that one of the factors that the court can take into account is any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views. So, on another argument, the child can express an opinion at any age.
In practice, if the child says that they don't want to go, and they are six years old, and the Court is convinced that the child is not in danger then the Court will make an order for the child to spend real and meaningful time with both parents. A child of this age is simply too young to understand the damage that they are doing to their relationship with their parent, and may be basing their opinion on factors that are important to a six year old that are not relevant factors that the court will take into account, (like the location of the family pet, or anger at one parent for re-partnering because they believe their parents will get back together).
If the child is 15 years old, they point blank refuse to see the other parent, and the Court is satisfied that the child is not at risk because of this decision, then in practice there is little that the Court can do. The Court will not for instance order the Police to come and make the 15 year old go.
The reason that the Court is reluctant to give weight to a child's 'decision' is that the resounding weight of evidence states that a child is harmed if they do not have a real and ongoing relationship with both parents, so long as they are not in danger at either residence. This is the case even if one parent is a 'better' parent than the other parent because, at the end of the day, you cannot choose your child's parent. Your child is half of each parent, both biologically, and in terms of their developmental understanding of the world. Research actually says that a child cannot tell the difference between a criticism leveled at their parent, and a criticism directed at them. They understand that their parent is a separate entity, but they are as hurt by the insult to their parent as they are by an insult directed to them. Both parents are valuable to the child, and the love of both parents is crucial to the child, even if you are frustrated because you believe the other parent should be doing something different such as paying more attention to the child.
So in short there is no age, it depends on the facts and circumstances of the case. In order to decide what should happen in your child's situation you need to speak to someone who understands how the Family Court makes these decisions, what weight they give to certain factors, and what evidence is valuable to the Court.
What do I do?
You should speak with one of our family law team about your specific situation, and how you should respond. There aren't hard and fast rules in Family law and it isn't as simple as applying a flow chart or practical formula to come up with an answer.
Jacinta Watkins and Hamish Williams are experienced family law practitioners who will speak to you in plain English about your family law matter. Your first appointment will be free, and you can find out what the next steps are and whether your situation is a situation where your child can decide.