At what age can a child choose which parent to live with?

What does the law say about a child choosing which parent to live with?

The question of who the children are going to live with after a divorce can be a difficult one to answer. As children get older and more mature, they may inevitably want more of a say in who they want to live with.

From the age of 16, a child can legally decide which parent they would like to live with. This may extend to 17 or 18 if a child arrangement order is already in place which specifies where they should live. If the child is under 16, the decision is a joint one for the parents to agree on, but if they cannot agree, the court makes the decision.

In family law proceedings, the overarching consideration is always, ‘what is best for the child?’ Due to this, the court must consider the criteria forming the welfare checklist contained in Section 1(3) Children Act 1989.

How does the court decide which parent a child should live with?

When a court addresses any matter concerning the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. The criteria for the welfare checklist include:

• The ascertainable wishes and feelings of the child.
• The child’s physical, emotional, and educational needs.
• The effect on the child if circumstances changed because of the court’s decision.
• The child’s age, sex, backgrounds, and any other characteristics which will be relevant to the court’s decision.
• Any harm the child has suffered or at risk of suffering.
• The capability of the child’s parents (or any other person the courts find relevant) to meeting the child’s needs.
• The powers available to the court in the given proceedings.

What if a child doesn’t want to live with a parent?

While children are not usually asked to attend court, or to speak to lawyers or a judge, it can happen in the right circumstances. The children will speak with the Children and Family Court Advisory and Support Service (CAFCASS), an independent body representing children’s interests and advising the family courts about children’s welfare.

During this conversation, the children will be asked in an appropriate manner how they feel about any existing arrangements and whether they would like to spend more or less time with either parent.

Based on these conversations, CAFCASS can issue a report to the court containing recommendations based on what the children have said. The older the child, the more weight is given to their views. But they should not overlook the other criteria in the welfare checklist.

Why might a court not follow a child’s wishes?

The most important consideration in any child arrangements agreement in court is the welfare and best interests of the child. Where it is deemed that the child’s wishes conflict with this, a court may decide to issue an alternative ruling.

In many cases, the court will listen to and take into consideration the wishes of the child or children in question. However, things such as the child’s age, maturity, and understanding will all need to be considered, as well as the potential for a child to be influenced by others, before it is determined how much weight their wishes should have in proceedings.

Typically, the courts tend to view the wishes of an older child as more influential, as they are more likely to have a greater understanding of proceedings.

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