Quite frequently in divorces, the parents criticize each other in front of the children, or father may huddle with them at home while dishing out the pizza or ice-cream and ask, “So, where do you want to live, with mommy or daddy?” Very young children, their mouths full of treats, will answer – “You, daddy!”

Children also know how to ‘play’ their parents. This is one of the many reasons why parents ought never to ask these questions directly. Another reason is that a child, faced with having to choose one parent over the other, could be traumatized at having to make that decision.

But, you may ask, can the children choose under different circumstances? The answer is generally, ‘No’. It can be confusing though, as the Children’s Act (‘the Act’), requires parents not to make decisions that might impact on the other parent’s right to have contact with the children, without taking heed of that other parent’s views and, of course, the views of the children.

Section 10 of the Act instructs that children have the right to be involved in decision making that affects them, subject to their age and stage of maturity. Thus, children’s views are indeed relevant – but only in so far as they are mature enough to have minds of their own and to be able to make decisions on such important matters.

You may now ask, how old must a child be, to have an opinion that will influence a court or other person in deciding where the child will reside? This is a difficult question because children develop at different rates and their circumstances differ as well. Usually, an expert in child behaviour is consulted and may have to run psychological tests to gauge the level of maturity of a particular child. In other cases, a suitably experienced professional will be able to gauge very quickly, whether, or not, the child’s view is sufficiently objective enough to take it into consideration and if so, to what extent. It may be just one factor in a particular case, or it may be the decisive factor.

In two similar cases in the High Court judges were faced with the decision whether to order that a boy (15 in one case, 16 in the other) should go to his father or stay with his mother. In each case, the judge expressed the view that he would prefer to see the child remain under the care of the mother, but both judges felt that the mothers would be unable to control the boys, as it was clear that the boys strongly desired to be with their fathers.

In another matter, a judge decided in favour of two children, aged 11 and 14, that they would remain in the care of their father whilst their mother went overseas for 3 years. In doing so, the judge ruled against the mother herself and three experts, all of whom had advised the judge to disregard the children’s wishes and send them with their mother.

As you can see, the question is not an easy one. To put it concisely – as the ‘child’ grows older and matures, so his or her views will gain traction, or authority in the circumstances. So, the answer to the question is a hesitant, “Yes, children can, in certain circumstances, choose which parent they will live with.”

For any assistance or advice regarding family law; children’s rights; parenting; divorce; attorneys; courts; family advocate; family courts; domestic violence; protection orders; child maintenance or international divorce please contact our Family Law Department.

Telephone: +27 31 570 5337; Email: roger.knowles@gb.co.za