Does it matter what the children want in family law parenting disputes? How do kids get to make their wishes known to the court?
The over-riding principal of the Family Law Act is that in any parenting dispute, the court must make an order that is in the children’s best wishes. However, there are many factors taken into account in determining what the child’s best interests are.
One factor that the Act provides the Court must take into account is the child’s wishes. However, that does not mean that a court will simply do what a child wants. In considering the child’s wishes, the court has to go on to decide how much weight to give them when balancing them against all the other competing issues.
If children are very young, their wishes are generally not given a lot of weight by the court. However, as children get older, the significance of their wishes increase.
The courts also consider, however, the maturity of the child and the basis for their wishes. For example, I once had a case where a child aged 14 expressed a wish to live with her father, essentially because “dad doesn’t make me go to school”. In those circumstances, whilst the court was bound to take into account the child’s wish to live with her father, it did not give much weight to it, because the child’s wish was clearly immature and not in her own best interests.
There is a popular misconception many of my clients have that there is a magic age when what the child wants to happen will be what happens. This is not correct. The courts make parenting orders about where the child lives, when the child sees the other parent, etc, that are binding on the parents until the child is aged 18. What the real issue is are the factors that I have outlined in this article – that kids’ wishes have to be considered in the context of their age and maturity, but still be subject to what the court considers is in their own best interests.