Can Children Determine Who They Live with, Post Separation?

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After I had an accident and had to spend some time in the hospital, I decided that it was time to make a will and do some estate planning. After all, you never know what is around the corner, and I would hate for a family member to miss out on inheriting from me if I were to suddenly pass away. I worked with a lawyer to draft a will. We then discussed the various ways I could arrange my estate. I had been worried that I wouldn’t understand the different legal terms, but my lawyer took the time to carefully explain them. I am now much happier knowing that everything is in place. I decided to set up this blog to offer tips to other people who are in the process of planning their estate.

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Can Children Determine Who They Live with, Post Separation?

22 November 2016
 Categories: Law, Blog


When two parents separate there can often be considerable discussions in relation to the well-being of the children. The parties need to agree on parental responsibilities, who is going to look after the children financially and crucially, where they're going to live. In determining the amount of time that the child may spend with each parent many factors are taken into consideration. However, should the views of the child itself be a determining factor?

Popular Misconception

Many people are under the misconception that a child will have no say in who they live with until they reach a certain age. In truth, this will always be based on individual circumstances and the particular child in question. In short, it will depend not only on the age of the child but upon their maturity and how well they understand the situation that is unfolding.

Individual Input

As you can imagine, this can be a very complex situation to unravel. Of course, the child will often vocalise their particular opinion in relation to how much time they want to spend with one or the other parent. In this case, it's important to carefully listen to their concerns and to assess their opinion in the light of all other circumstances.

Sometimes, a child may assert that they are "homesick." This is not automatically a signal that the courts should intervene and determine that the child spends more time with the other parent. In this case, more effort should be put into establishing a routine at the other residence, or to build the child's sense of belonging there should this be the case. It might after all be a case of unfamiliarity, or certain external factors such as the property being in a noisier environment.

Sibling Interaction

The situation can be even more complicated when there are several children involved of different ages. It's not ideal for parents to have different arrangements for each of the children, as this could interfere with the natural interaction between the children themselves.

Risk of Undue Influence

It is also important for one of the parents to be careful not to influence a child consciously or subconsciously, resulting in a request from the child for a particular action. This is sometimes a strategy introduced by a parent who is desperate to ascertain more control over a child, but it's a situation that can be readily determined by a court through observation.

Making Changes

If, however, the child does have the insight and maturity to fully understand the circumstances impartially and this affects an existing Court Order, then legal advice should be sought to seek changes.

For more advice, contact a family lawyer.