In all family court proceedings, the wellbeing of the child is paramount. Stable, loving relationships with both parents is a vital aspect of this wellbeing, regardless of the family’s living arrangements.
Sooner or later, children reach an age where they start wishing they had a say in the comings and goings of their family life. When families do not live together, this can place considerable pressure on an already difficult situation.
So how old should a child be before they can make decisions about where they live? The old wives’ tale that children will be able to "have their say" when they turn 12 is misleading. There is no exact age that a child can decide for themselves where they will live and courts give consideration to a number of factors of which age is but one. Maturity, insight, and awareness must be demonstrated by the child, so they can truly be thought to be freely making an informed decision.
It is disingenuous to give a child the impression that they will be able to control their fate, so to speak, once they turn 12. Not only could this advice prove incorrect if mediation is unsuccessful and the case appears before the court, furthermore misleading the child could damage their relationship with health providers and caregivers. Parents could lose their child's trust while health providers may damage hard-earnt rapport with their client.
If there seem to be psychological reasons for a child’s reluctance to stay with a parent, such as homesickness, anxiety, fear of abandonment and problems with other residents such as step siblings, it is advised to allow the child to see a counsellor who specialises in children. Homesickness is not a sufficient cause for a Court to prevent overnight contact with non-custodial parents. Instead, caregivers and health professionals should encourage to learn coping methods, such as an understanding of time and ways to relax when feeling unsettled. A child counsellor will be able to advise what methods are best to use in each child's specific circumstances.
Family proceedings are often complicated by the extended family network. Siblings, stepfamilies, and grandparents can all make navigating the family court process difficult. This is especially hard when an older sibling is at an age and level of maturity to determine their level of contact with their parents. On the one hand, the family court is usually reluctant to part siblings. However it would be unusual for them to force children that show insight and maturity to stay with a parent when they do not want to.
Family law courts can see past the rhetoric of parents, to establish whether a child's reluctance to see a parent is of their own volition or being influenced by the other parent. Children are sensitive to their parents’ moods ad tone when discussing the other parent, and reluctance to see non-custodial parents can be reflected in the child’s actions. Furthermore, the child might feel like they need to protect the feelings of one parent. Worried they might be betraying loyalties.
It is always important to foster the relationship between a child and both parents unless there are serious reasons not to. Provided the child is safe, both parents should be afforded the time to develop a strong relationship with their children.
A good way to ensure the rights of the child are weighed fairly against the rights of their parents for access is to obtain a court-appointed Independent Child Lawyer (ICL). An ICL will thoroughly research the child's case and weigh it against any previous cases that may have set a precedent on the issue. Using this information, the ICL will form an independent perspective of what is best for the child as well as making the court aware of the child’s opinions. They will attend court in your child’s place and represent them in all matters.
It takes two to tango, and parental conflict is no different. When assessing the capacity of a child to make their own decisions, consideration must be given to their ability to understand this. However, if a child shows considerable insight and a mature understanding of the circumstances, and they are at no risk of harm, their wishes should be taken into consideration, and legal advice should be sought.