If your parents separate, you might have strong feelings about which parent you want to live with.
You'll probably be asked what you think about it all, but children don't usually get to decide which parent they live with or how much time they'll spend with each parent after a separation or divorce.
- a child is someone under the age of 19, and
- any decisions about the time the child will spend with their parents have to be in the best interests of the child.
How will your parents decide what to do?
Your parents might make an agreement about how much time you'll spend with each of them. They:
- might make this decision without asking you what you think, or
- might talk to you about it first.
But if they can't agree, a court might have to decide about:
- where you should live, or
- how much time you'll spend with each of them after they separate.
The Family Law Act says that anyone who's making these decisions about you must think only about your best interests. This includes the court.
Your best interests include what you want, unless it's not appropriate to consider that (for example, if you're very young). But there are lots of other things to think about too.
When your parents or the court look at all these things, it's usually called doing the best interests of the child test.
What's the best interests of the child test?
The best interests of the child test is a list of the things that your parents or a court have to think about when they're making decisions about parenting after separation and divorce.
Here are some of the things they'll think about:
- your health and emotional well-being (for example, how you'll be affected by the decision not only right now but also when you're older);
- what you think or want, unless it's inappropriate to consider this;
- the love and affection between you and other important people in your life;
- your need for stability, which can depend on your age and stage of development;
- who looked after you in the past and how well they looked after you;
- how well your parents or any other person who wants guardianship, parenting time, or contact will be able to look after you;
- if there was any family violence, its effect on your safety, security, and well-being; and
- whether arrangements that need your parents (or other guardians) to cooperate with each other (work together) are appropriate.
See Best interests of the child to find out more about this.
Will they listen to what you want?
- A child might not want to go to school or eat vegetables, but it's their parents' responsibility to make decisions about the health and well-being of their children. There are all sorts of things your parents have to think about when they're working out what's best for you. Your opinion is one thing, but it's not the only thing. If your parents make a decision about you that you're not happy with, talk to them about it or talk to a counsellor. You can also ask your parents to get a Hear the Child Report. This is a report done by a specially trained person who talks to you and writes down what you tell them.
- If your parents go to court, the court might want to know what you think about what’s happening.
Your age and maturity will make a difference. If you're older, your parents and the court will be more likely to ask your opinion and it will have more weight.
But remember: your opinion isn't the only thing they have to think about.
Where can you find information about separation and divorce for kids?
The Justice Education Society's Families Change website has some useful guides about separation and divorce for children and teenagers.
Their Legal Rights for Youth website will tell you about how the law applies to youth, including age-based legal rights, family break-up, work, driving, medical rights, mental health, abuse and sexual assault, crime, and online safety.