Can My Child Choose Which Parent?

Will a judge interview my child, and what happens in that interview?

Sometimes. A judicial interview is at the court’s discretion — no parent and no child has a right to one. It is held privately, away from the courtroom atmosphere, and the child is not cross-examined. Where the court orders one, it usually runs like this:

1. The court decides that hearing the child directly would assist.
2. A time is fixed, with the child brought to court by an agreed arrangement.
3. The judge speaks with the child without the parents present, in plain language and without formality.
4. The judge explains that the child is not being asked to choose, and that adults will decide.
5. The judge decides what, if anything, from the conversation is shared with the parents and their lawyers.
   
   

My advice before an interview is short and strict: tell your child that a judge simply wants to know how they are doing, that there are no right answers, and that nobody will be angry with them afterwards. Anything more than that is coaching, and it shows.

What is a Child Representative and when is one appointed?

A Child Representative is a lawyer appointed by the court to act in the child’s interests — not for the mother, not for the father. The role is set out in the Family Justice (General) Rules 2024 and Part 10 of the Family Justice Courts Practice Directions 2024.

The Child Representative engages the child and puts the child’s perspective before the court, so the child does not have to carry it personally. In my experience it is worth asking the court to appoint one where conflict is entrenched, where each parent’s affidavit describes a different child, or where a child is being drawn into the adult dispute — and usually not worth it where the real fight is about money.

Costs follow a two-tier framework for child representatives published by the Family Justice Courts: the first tier is fixed at $1,000, and the Child Representative may apply to the court for further costs in the second tier where the case is complex and more work is required. The court decides how those costs are divided between the parents.

What is a custody evaluation report and who prepares it?

A custody or access evaluation report is a confidential report ordered by the court and prepared by a trained evaluator from Counselling and Psychological Services, the social science arm of the Family Justice Courts. It assesses the child’s needs and welfare and assists the court on care arrangements and the support the family may need. There are no fees for the services Counselling and Psychological Services provides.

It is a process, not a single meeting. It typically involves sessions with each parent and with the child, and the evaluator forms a view about the child’s needs rather than scoring the parents.

For Muslim divorces, the Syariah Court may order a Custody Evaluation Report prepared by an appointed psychologist where there are serious disputes about custody, care and control or access. The psychologist interviews both parents, the child and other significant adults in the child’s life; the report to the Syariah Court is confidential, and no fees are payable for it.

How might the court hear my child’s views?

Are my child’s wishes binding on the court?

No. A child’s wishes are evidence, not an instruction to the judge. The welfare principle governs, and a stated preference can be outweighed by stability, safety, school continuity, sibling relationships and which parent has actually been doing the caregiving.

Judges also read preferences in context. A wish expressed in adult language, arriving with a list of the other parent’s faults, or matching one parent’s affidavit word for word, tends to be treated with caution. That is why a preference obtained through pressure often backfires: it tells the court something about the parent, not the child.

The same welfare principle runs through relocation cases where a parent wants to move overseas, and it is decided separately from financial questions such as claiming child maintenance.

What should I avoid saying to my child while the case is ongoing?

Keep your child out of the litigation entirely. Anything that asks the child to take a position, carry information or manage your feelings tends to be noticed, and to count against you.

Avoid these:

1. “Tell the judge you want to stay with me.”
2. “Your mother/father is the reason we are in court.”
3. Asking the child what happened at the other parent’s home, or what they told the evaluator.
4. Showing the child affidavits, messages or court documents.
5. Promising the child a bedroom, a pet or a holiday if they say the right thing.
   
   

If your child has said they do not want to live with you, do not argue with them. Be reliable with access, be on time, keep contact ordinary and low-pressure, and let a consistent record over the coming months speak for itself.

Frequently asked questions