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QLD Custody of Children - Children Want Orders Changed?

Discussion in 'Family Law Forum' started by Marissa, 11 February 2015.

  1. Marissa

    Marissa Member

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    How old do children need to be to decide who they want to live with? I have week about shared care orders in place (re custody of children) but the children are tiring of this.
     
  2. Ivy

    Ivy Well-Known Member

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    Hi Marissa,

    Is the custody arrangement you currently have a court mandated one?

    I don't believe that there is a set age when children definitively decide who they want to live with. However the court will always take into account the child's wishes when determining what is the best arrangement for them. If your children are old enough to clearly articulate that they are unhappy with the situation, then you, the children and your ex partner should start discussing this (if possible) and try to come to an arrangement. You and your ex can then apply to have the court order changed.

    Alternatively, if you and your ex (and your children) can't discuss the arrangements and come to an amicable decision, you can apply to the court. The children will speak with a psychologist or counsellor who can prepare a family report that tells the court what the children's wishes are.

    I found this page on the Queensland Legal Aid website that may be useful: Family breakdown

    Does this help?
     
  3. Marissa

    Marissa Member

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    We have the above orders in place. My 8 year old has been taking off from her father on change over day be it from school or on holidays, and refuses to leave my car at school on change over day
     
  4. AllForHer

    AllForHer Well-Known Member

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    Summarily, the older the child, the more weight their view holds. The views of children deemed mature enough to have an informed opinion about the situation will be heard as a significant deciding factor in their care arrangements, and this age is ordinarily around 12.

    For children younger than that, the court has a tendency to assume that the child is likely influenced by the conscious or subconscious anxieties of the parents. For example, if the child says, "I don't want to go to dad's" and the mother says "I don't want you to go either, but you have to", that's not really a view of the child, but a view of the parent impressed upon the child.

    Hope this helps.
     
  5. trevor01

    trevor01 Active Member

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    just on this how do the courts view the childs wishes in relocation if it not about the parents eg a 9 yr old that is saying i dont wish to leave my school
     
  6. AllForHer

    AllForHer Well-Known Member

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    Similar to above.

    Any orders in relation to children must be made in the best interests of the child.

    Relocation is sometimes a special circumstance - while it might be considered best for the child to remain living close to both parents, it probably isn't best if their primary carer is unable to find work in that location or has no friends or family nearby to provide them with emotional support.

    However, a child not wishing to change schools at 9 years of age probably isn't going to have their view given much weight. School is just one aspect of a relocation order. If you consider how things would be for an intact family, would the parents reorganise their entire lives to accommodate one child's desire to stay at their school? Probably not. The court will place more weight on how the move will impact the child's capacity to continue enjoying a meaningful relationship with the other parent.
     
  7. trevor01

    trevor01 Active Member

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    see my above post re relocation my situation is my x has moved away to wa from vic with her husband in wa there is just the 2 of them but in vic in same town and 2 grandmothers uncles and aurts and cousins
     
  8. AllForHer

    AllForHer Well-Known Member

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    Are there any orders or parenting plans in place?
     
  9. trevor01

    trevor01 Active Member

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    yes there are i have 35% care of a asbergers child
     
  10. AllForHer

    AllForHer Well-Known Member

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    It's difficult to provide comprehensive information without having seen the orders.

    What I'm gathering is that your child lives primarily with your ex and her husband and spends time with you, and I assume you share equally in parental responsibility.

    If this is the case, the mother cannot move without first consulting and reaching agreement with you as a move from Victoria to Western Australia is a major, long-term decision about the care, welfare and development of the child, and I assume it will also significantly impact your child's ability to continue having a meaningful relationship with you.

    Further, I assume it will also mean the mother is unable to uphold her end of the orders.

    If she relocates without your consent, you can file for a recovery order that would see the child returned to your care, potentially by ordering the mother's relocation back to Victoria. The strength in your case would be in regard to the significant impact the relocation has on the child's ability to have a meaningful relationship with you.

    It may also be necessary to file an initiating application to change the current orders as the circumstances have changed significantly. Changes might include all holiday periods and one or two weekends per school term, or it might include the mother paying for all flights to facilitate the child spending time with you.

    I would get legal advice for this matter, but I hope the information I have provided has in some way helped.
     

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