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Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34905
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Can a child decide which parent to live with when 12 y.o.?

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Me and my son's father have been divorced for 7 years. My ex-husband was emotionally abusive with me, and is now doing the same with me son. My son often comes back from his visits very distressed. I am the main career, but has father does see him on a regular basis. My son told me that once he is 12, he will go and live with his father, because his father wants him to live with him. My son't father has not paid any maintenance for 5 years, and only now started paying part of the maintenance 2 years ago. He is very angry about it, though it's a very small amount. Apparently my son's father wants to become the main career and get me to pay him maintenance. My son is very scared to upset his father by rejecting him. Can his father actually just take him as soon as he is 12, or would there be a court hearing? Will my son be interviewed by someone? How likely would my ex-husband win the case and take my son away? And is it possible that he would make me pay maintenance to him, though he himself has not been paying for years?

Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
How old is the child and what is the current pattern of contact?
Customer: replied 3 years ago.

My son is 10 years old. He sees his father every Monday after school till 6pm. Every Wednesday after school till Thursday morning and every other weekend from 6pm on Saturday till Monday morning.

Does he have any extra time in the school holidays?
Customer: replied 3 years ago.

Yes, we share school holidays. He does 2 weeks in the summer and a week during longer breaks, so it is just a bit less than half half.

Does your son enjoy those longer visits?
Customer: replied 3 years ago.

Most times he has a good time.

For clarity - does your son think he will HAVE to say yes?
Customer: replied 3 years ago.

yes - his father has been brainwashing him about it for the past few years. He is really afraid to upset him, so he is convinced that he will be saying yes.

Has your ex asked for more contact straight away at all - say from Friday to monday on alternate weekends?
Customer: replied 3 years ago.

No, he has not.

It is true that once a child is over the age of*****is likely to follow the child's wishes in terms of how care is shared between the parents.
Accordingly if your ex does make a court application at that point then your son's expressed wishes will be of importance
However it is not as simple as your ex saying that is what your son wants.
At the very least he will speak with a Mediator trained to work with young people who will explore with your son what he really wants and why.
If he does live with his father then yes I am afraid you will have to pay maintenance
However there is work you can do now to ensure that when the time comes your son is able to express his real wishes - not those of his father
You need to show your son that you can deal with your ex's bullying - because if you can then he can too.
YOU could maybe suggest to your ex that if he wishes to have the child more often in the future then he starts by having them for a full weekend - and coping with washing the school uniform; sorting out homework etc.
You also need to start building up your son's confidence - and his ability to think through the consequences of choices that are made.
I hope that this is of assistance - please ask if you need further details
Clare and other Family Law Specialists are ready to help you