QLD When Can Child Decide on Custody of Children?

[Allylly]

I was just wondering how much influence the child of a divorce has in deciding their custody. I was always told I'd get to decide which parent I'd stay with when I was twelve. Well, it's been a few years since I turned 12, but I'm still under the age of 18 and under my parents care.

Currently, my parents have 50-50 custody of children over me. For a long time I've been wanting that to be 100-0. How would I go about making that happen?

Though both my parents meet my physical and financial essentials, one of my parents is basically the cause of the clinical depression, anxiety and low self esteem (leading into insomnia and social problems) I've dealt with throughout my short life. I already spend probably 90% of the time with my stable parent, but would like to make that a lawful 100%.

I have a therapist who I believe would support me in this decision. I am also more than willing to break off contact with my other parents family.

Though I am concerned that the parent I want to get away from will exercise their "right to see their child", that other people will decide what's best for me and my upbringing and that this will put my preferred parent in an difficult situation.

So is there any sure fire way or rule that allows me, the child, to decide?

Thank you in advance

 

[Alan Blumberg]

Just do it. At your age, no one is going to stop you.

 

[Lance]

Speak with your preferred parent. The Courts main concern is with your best interests specifically your protection from physical or psychological harm and this is given the highest priority.

In QLD, there is no set age when you can decide who you live with, percentages and even communication but they consider it based on your emotional and intellectual maturity and age. If you explain your situation and desires as clearly to the court as you have in this post, you shouldn't have any problem.

 

[sammy01]

So just checking - you have orders that say 50/50, so week about or something similar? But it isn't happening? Instead you spend 90% with your preferred parent?

Ok, so legally. you can do nothing - yep, nothing, because you're a kid. You can ask your preferred parent to make a court application, but will be opening up a big can of worms and possible cause you even more stress - cause your parents stress and money and achieve very little.

A court is very unlikely to grant one parent 100% care and authority. Not unless there is substantial abuse.

So my opinion - do nothing, but you're not gonna take that, so my other opinion - tell the parent that you'd rather not go with them anymore. Tell them why, if you must, but you don't have to.

Now if you refuse to go with the parent, you need to make some strategies around that. And you have to hope they don't make a court application for contravention of court orders against your other parent. If that does happen, things are gonna get messy. Courts are grown up places - they are messy - you're not gonna even get to speak to the magistrate.

Oh and your psychologist won't get to speak for you either. The court will appoint people to speak to you to determine their perspective of the situation, but you will not step inside the court.

 

[AllForHer]

So, I'm not sure how familiar you are with how care arrangements (or "custody" for familiarity, though a term not used in Australian Courts) work where the law is involved, but first and foremost, please know that parenting orders are only effective in lieu of agreeement. That means that if your parents can agree on changing your care arrangements, they don't have to go to Court to do so.

It's a mandatory step in the Court process that your parents attempt to reach agreement without Court intervention by attending a family dispute resolution conference (or mediation). Some institutions offer child-inclusive conferences, where a specialist will speak with you first and then share your views objectively with the parents before so they can go into negotiations with a clear view of what you want for yourself. This might help your less-preferred parent be more willing to accept your views and reach an agreement with the preferred parent, which will in turn help all of you avoid Court.

If an agreement can be reached, it can be filed as consent orders with the Court so it becomes sealed and enforceable. If agreement can't be reached, either one of your parents can file an initiating application with the court to have the existing orders varies.

Ordinarily, amending orders requires the applicant party to prove there has been a significant change in circumstances such that the existing orders are no longer in your best interests (called the Rice & Asplund rule) but it's quite often the case that threshold can be met if enough years have passed (that is, you're older now) and the orders don't actually reflect what's happening with care arrangements in reality (such as you living with one parent 90% of the time instead of 50% of the time as the orders state).

The Court must only make parenting orders that it determines are in the best interests of the child, and to reach that decision, it must take into consideration lots of different factors, outlined in section 60CC of the Family Law Act 1975. Your view is one of those factors, provided you are considered old enough and mature enough for your views to be considered informed ones.

To determine what your views are, the Court will assign an expert witness to talk to you and your parents, then deliver your views in a family report. The Court will then also consider the other relevant factors in section 60CC before making its decision.

For many teenaged children, particularly those whose views are found to be independent and not influenced by the other parent, the Court will make orders that the child spend time with the non-preferred parent in accordance with the child's wishes.

Before pursuing legal avenues, some points to consider:

- Court is very costly. It can cost each of your parents up to $30,000 to have the matter determined;
- Court is also very time consuming. Some matters will not receive a trial date for some three years down the track; and
- Parenting orders only last until a child reaches 18 years of age. There is no point in going to Court if you're likely to reach the age of majority within the next three or so years.

In my view, your best option is to talk to your parents about your circumstances. See if they will reach agreement about your care arrangements without going to Court, or alternatively, see if the challenges you're experiencing with the non-preferred parent can be addressed in some other, more productive way, such as through family therapy or similar.

Hope this helps.