Child Views in Parenting Arrangements
How the Child’s View Affects Custody Disputes
Before imposing an order, the Court will always consider what parenting arrangements are in the best interests of the child. In determining the best interests of the child, any views expressed by the child will be taken into consideration. During this process, the Court will place appropriate weight to these views depending upon various factors such as the child’s maturity and understanding of the situation.
As children of a mature age are more likely to grasp the concepts of separation, split custody and parenting arrangements, the Court is likely to place far more weight to the views of children between the age bracket of 14 – 18 years. Studies indicate children within this age bracket are more likely to comprehend complex situations such as parenting arrangements as opposed to children less than 10 years.
Areas of Proposed Reform
Although the current law encompasses the views of all children under the age of 18 years, the Queensland Family and Child Commission has recently proposed recommendations to the Australian Law Reform Commission that the views of younger children should be considered with more weight. The recent submission made to the ALRC consider child’s views are significant, regardless of age or maturity.
The submissions seek to further promote the meaningful engagement younger children have with the parenting arrangement process. These notions have been publicly backed by child protection organisations such as Bravehearts and UnitingCare who believe the voice of the child need to be heard in all situations.
Do These Changes Have a Downside?
Despite having practical applications, these submissions may be premature in placing significant weight to infantile children’s views. Family Law Experts have indicated reform of this area may lead to parenting arrangements which may seem in the child’s best interests, but ultimately fail to address underlying concerns such as manipulation and bribery. Social studies indicate many children between the ages of 8 – 12 show preference towards the “fun” parent, whilst the parent who enforces disciplinary is viewed negatively. In cases involving a 50/50 custody dispute, if the views of the child are given more weight, this could be unfairly detrimental to one parent in the proceedings.
Therefore, despite the child having a negative view of the disciplinary parent, enforcement of punishment is likely to be in the child’s best interests. This is supported by studies indicating young children are often unconsciously influenced, or in some cases manipulated, by one parent proving excitement and gifts. If a child in this situation was asked which parent they would prefer (without the necessary maturity and understanding) the answer may indicate a decision they do not fully comprehend, and, one which is not within the child’s ultimate long-term interests.
How Can These Pitfalls be Avoided?
To avoid unnecessary manipulation and bribing of children by parents, emphasis may be placed on expert third-parties which could assist the Court in determining the underlying views of the child. Persons such as Family Report Writers, Independent Children’s Lawyers, Psychologists or Counsellors can be integrated into this process to ensure the child’s views are understood. This integration would also act as a safeguard to prevent parenting orders being influenced by wrongly founded child views resulting from bribes or manipulation.