Who am I going to live with if my parents are divorced/separated?

Are your parents separating and working out where you are going to live? Or perhaps your parents are already separated and there is a living arrangement already in place that you are not happy with? If so, read on…

Who decides where I live if my parents are separated or divorced?

Your parents should try to agree on how you will be looked after.

If they can’t agree, they can ask the Family Court to make the decision. The Court will look at evidence about you and your family and can then decide where you live, how much time you spend with each parent and other issues about your care.

How old do I have to be to decide who I want to live with?

There is no rule about how old you have to be to choose who you want to live with. You can have an opinion at any age and your parents should listen to what you have to say.

If your parents are going to agree on who you will live with, then it is important to try and explain how you feel. You may like to ask another family member or older friend to help you talk with your parents.

If the decision is being made by a court, then in most but not all cases, the older you get, the more likely it is that your views will be very persuasive for the judge making the decision. For example, if you are an older teenager who is quite mature and capable of looking after yourself, it is more likely that a court would make an order according to your wishes. However, this will always depend on the facts of your family’s case and especially whether you are going to be safe.

For more information about deciding where you live, see our page “Leaving Home”.

What happens if you go to court?

Parents try to agree

In most cases, your parents will first attend meetings with people who will try to help them reach an agreement. This is called “family dispute resolution”. You may be able to attend if you want to, but you don’t have to.

If there has been family violence, family dispute resolution may not be used.

If your parents can’t work things out in family dispute resolution, your parents may ask a court to decide the case.

Going to Court

The judge will look for a solution which they think is the best for you. They will look at things like:

  • your views;
  • your maturity and level of understanding;
  • your relationship with your parents and with other family members;
  • the impact of any changes in your living arrangements;
  • how practical or expensive any changes are;
  • how capable your parents or any other person are at providing for your needs, including your emotional and intellectual needs;
  • your maturity, gender and background (including your lifestyle, culture and traditions);
  • the need to protect you from harm; and
  • your parents’ attitude towards you and to the responsibilities of parenthood.

You don’t need to go into the Courtroom or give evidence and you won’t be forced to choose between your parents.

How can I have a say?

During the court process, you might have a chance to explain how you feel and what you think about your family.

You may meet a range of people as your family goes through the court process. These might include a family consultant, social workers, police and medical professionals.

Some of these people will make reports to the court about you or your family. If you have an opinion about where you would like to live or about any other arrangements being made for you, you can discuss them with these people and they might be able to tell the judge what you think.

Can I have a lawyer?

Sometimes.

In some more complicated cases, the court may ask an Independent Children’s Lawyer (ICL) to represent your best interests. The ICL is a lawyer but they don’t work for your parents. Instead, they give their opinion to the judge about what they think is the best decision for you, even if they disagree with both of your parents.

They are there to:

  • answer your questions;
  • listen to your views’
  • tell the Court what you want; and
  • help the Judge make the best decision for you.

The ICL might disagree with you about what the judge should decide. If this happens, the ICL will tell you why. The ICL will still tell the judge what you think even if they disagree with you.

Sometimes, the ICL does not meet with you face to face, for instance when you live too far away. However, he or she will still represent your best interests. They should always make sure you get a chance to speak to them, even if it’s over the phone.

Will I have to see a psychologist?

Sometimes.

Sometimes the court needs a report from an expert to give more information about you and your family so that the judge can make a decision in your best interests. You may go (along with other people, such as a parent and your siblings) to speak with a psychologist, also called a family consultant. They write a report and send it to the judge to help them decide on the case.

A family consultant is someone who talks to you and your parents about you and your family and what it has been like since your parents split up.

A family consultant is there to:

  • answer your questions;
  • listen to your views and ideas; and
  • tell the judge what you think.

It is up to you what you tell or don’t tell and you don’t need to say anything if you don’t want to. You do not need to choose between your mum and dad. If you are worried about saying things that might upset your parents, explain this to the family consultant first and they can work out how to tell your parents. The family consultant will try to help your parents agree on where you will live.

The family consultant will write a report for the judge, including about what you think.

What happens after the Court makes its decision?

Someone will explain the decision to you. This person may be one of your parents, an ICL or a family consultant. You parents will be responsible for making sure they follow the orders the court has made.


Last updated 22 September 2010