Can a child decide with which parent they want to live?

It is a fact in our law that a minor under the of 18  is not allowed to have any legal rights without the authorisation of a parent or legal guardian unless they have been emancipated. It is a misleading story that a child can decide all by themselves where they would like to live at any age under 18. The legal fact is, they can’t although the court must listen to and take into consideration the testimony of the child in question. The seriousness of the testimony and the judgement of the child is dependent on the age of the child as small baby would not be able to provide testimony while the testimony of a minor aged 15 may be more relevant than a child aged 5 years old. And this is where the confusing stories comes in when people think a child of a certain age may decide where to live, as the court will only listen to the child’s testimony relating to the age of a child and can take it into consideration.

Section 10 of the Children’s Act reads:

“Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child, has the right to participate in an appropriate way and the views expressed by the child must be given due consideration.”

The right to participate in these disputes should however not place a burden to choose on the child, especially in care and contact situations where a child might feel caught up between loyalties to one or the other parent or caregiver.

The right to participate does not mean the child has the right to have demands for a particular outcome or course of action. The Court still has power to decide what is in the child’s best interests even if it is not what the child wishes provided the Court has afforded the child an opportunity to participate and given due consideration to the child’s views.

So the fact is no child  can choose which parent they want to live with according to the Children’s Protection Act in South Africa and this is because their judgement may be influenced. A child may choose to live with a parent because they buy the child material things the other parent cannot afford and the best interest will then rather be to be with the poor parent who cannot afford nice stuff but are providing the nurturing elements that are deemed necessary for the child to grow and prosper.