What Age Can a Child Choose Which Parent to Live With in NSW?

There is no magic age. No provision in the Family Law Act 1975 gives a child the right to decide which parent they live with at 12, 14, or any other age. This is one of the most persistent myths in Australian family law — and it causes real problems when parents or teenagers make decisions based on it.

What the law does say is that the court must consider the child's views as one of six factors under the amended Section 60CC best interests test. How much weight those views carry depends on the child's age, maturity, and the context in which they're expressed.

How the Court Considers a Child's Views

Under the May 2024 reforms, the child's "perspectives and views" are a mandatory consideration alongside safety, developmental needs, parental capacity, and the benefit of maintaining relationships with both parents. The court doesn't ask children to choose a parent — it assesses whether the child has expressed views, and if so, how much weight to give them.

Age 5 to 8 — children in this range may express preferences, but courts generally give these limited weight. Young children are highly susceptible to influence from whichever parent they're with at the time, and their understanding of the consequences of their preferences is limited.

Age 9 to 12 — views start carrying more weight, particularly if the child can articulate reasons rather than just expressing a preference. A child who says "I want to live with Mum because my school and friends are near her house" demonstrates understanding. A child who says "I hate Dad" may be reflecting parental conflict rather than a genuine preference.

Age 13 to 15 — significant weight. Teenagers who express consistent, reasoned preferences are difficult for courts to override. A 14-year-old who has maintained the same view over time, expressed it to multiple people (the family consultant, a counsellor, a teacher), and can articulate practical reasons is taken very seriously.

Age 16 to 17 — courts recognise that forcing a 16 or 17-year-old into a living arrangement they strongly oppose is practically unworkable. While the court can still make orders, compliance becomes almost impossible at this age. Most custody disputes involving older teenagers resolve around the teenager's stated preference.

How Children's Views Are Gathered

The court does not put children in the witness box to testify against a parent. Instead, children's views are obtained through:

Family consultant interviews — when the court orders a family report, the family consultant (a psychologist or social worker) interviews the child in a child-friendly setting. They use age-appropriate techniques to understand the child's experiences and preferences without pressuring them to "choose."

Independent Children's Lawyer (ICL) — in more complex cases, the court appoints a lawyer to represent the child's best interests (not necessarily the child's wishes). The ICL meets with the child, gathers their views, and presents them to the court alongside their own professional assessment of what's in the child's best interests. Legal Aid NSW funds ICL appointments.

Written communication — older teenagers sometimes write letters to the court expressing their views. These are accepted but carry less weight than a family consultant's report because there's no professional assessment of whether the views are genuinely independent.

When a Child's Wishes Won't Determine the Outcome

The court will look beyond a child's stated preference when:

• The child has been coached — if there's evidence that one parent has influenced the child's views through alienating behaviour, the court may disregard those views entirely. Signs include the child using adult language, parroting one parent's grievances, or expressing views that are inconsistent with their own experiences.

• Safety concerns override preference — a child may want to live with a parent whose household poses safety risks (family violence, substance abuse, neglect). The court will prioritise safety over the child's wishes.

• The preference is impractical — a child may want to live with a parent who works FIFO, lives overseas, or has accommodation that can't support the child. Practicality matters.

• The child is too young to understand consequences — wanting to live with the "fun parent" (who has fewer rules, later bedtimes, more screen time) doesn't reflect a mature understanding of the child's actual needs.

What Parents Should Know

If your child has expressed a preference about their living arrangements:

• Don't use the child as a messenger — never ask your child to tell the other parent where they want to live. This puts the child in an impossible position.
• Don't promise outcomes — saying "I'll make sure you get to live with me" creates expectations the court may not fulfil.
• Don't interrogate — asking "Do you want to live with me or Mum/Dad?" is harmful. Let the child express views naturally, and leave formal assessment to professionals.
• Do listen — if your child consistently expresses distress about their current arrangements, take it seriously and raise it through appropriate channels (your solicitor, the family consultant, or FDR).

For a detailed guide to navigating custody arrangements in NSW — including how children's views fit into the broader best interests assessment, and how to prepare for a family report — the NSW Custody & Parenting Plan Guide covers the full process.

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