Deciding where a child will live is not so much about his or her age, but rather maturity and understanding.While it is true that kids have some say in Family Law parenting disputes, it is not a deciding vote as the misconception would have you believe.
At some point in time, the child will be able to make a decision and go live with the other parent, but there is no particular age for that. Instead, it depends on the child's insight, maturity, and understanding of the situation.
Family lawyers warn that adults, including parents, health providers or caregivers, should avoid advising children that they will be able to make final decisions when they reach a certain age because it is incorrect. Should the case land in court, it is bound to compromise the child's trust in the authority figure who gave that advice, and it can disrupt therapeutic interventions when the rapport that has been built, is broken due to misinformation.
When a child expresses concerns about spending time with the other parent, try to explore the reasons behind the concerns. Consider whether the child can express his or her concerns and whether it is age appropriate.
Instead of putting a stop to overnight time with a non-residential parent due to homesickness, the Court will help a school aged child to understand that he or she will see the other parent the next day. Developing a better sense of time, and a self-soothing method and bedtime routine the child can follow at home and the other parent's home will help your child to feel more comfortable at bedtime.
Environmental factors such as noise from the child's bedroom window, or step-siblings at his or her second residence are issues that can be remedied.
There are times when children's resistance to overnight stays with the other parent is given much weight. At times, the older child may opt to stay with the preferred parent, while a younger child with the same resistance issues does not have the option to choose where he wants to stay.
As a parent, these issues can be difficult to navigate. You might even have two or more children with different arrangements to juggle. However, it is harder for a child to be partly separated from the comforting (and often annoying) presence of a sibling who is on a different arrangement. Courts are often reluctant to separate siblings due to the strong attachment, but in most cases, the court will not insightful, mature children to spend time with a parent they don't want to see.
The child may also be mirroring the primary caregiver's concerns about being away from the child. It may have been gleaned subconsciously. In that case, it is important to help the child understand the potential long-term impacts of not spending enough time with the other parent in the relationship with that parent.
Having been faced with countless custody battles, the court is particularly shrewd at pinpointing whether the reluctance to spend time with a non-primary parent comes from the child, or from a parent. The court will remain objective in cases where one parent provides a self-serving statement from one of the parents and seek other evidence of the child's view before a decision is reached.
The court may appoint an Independent Children's Lawyer (ICL) in litigated parenting disputes to give an independent view of the child's best interests in order to come to the right decision. However, the ICL may not always rule in favour of the child's expressed views. Often, children don't know what's in their best interests.
Psychologists, social workers, and allied health professionals can assist the court in reaching a decision by taking comprehensive notes of any treatments and interventions. Clinical notes brought before the court can help set aside or vary parenting orders.
The child's capacity for understanding that parental conflict has two sides will provide a useful indication of his or her insight and maturity. If the child understands the circumstances and still refuses to comply with court orders, it would be in the family's interest to seek legal advice to examine the available options.
Of course, it is imperative to protect a child from any neglect, abuse or other harm. A parent who honestly fears that the child may be at risk in the presence of the other parent or caregiver should act immediately by obtaining legal and other advice.