Separation – can my child decide who they want to live with?

When parents separate, one of the most important, and often most difficult, questions is: where will the children live? Understandably, many parents also want to know: does my child get a say in the decision?

The short answer is yes, children do have a voice in these matters. But how much weight that voice carries depends on their age, maturity, and the circumstances of the case.

Under Scottish law, every child has the right to express their views in decisions about where they live and how much time they spend with each parent. Crucially, the law no longer sets a minimum age: children of any age are presumed capable of forming a view. The court must take those views into account when deciding on child arrangements, unless it would be inappropriate to do so (for example, if it might cause the child distress).

There are several ways a child can express their wishes:

• Through a Form F9 – a standard court form designed to gather a child’s views in writing.
• By speaking to a Child Welfare Reporter – an independent professional appointed by the court to meet the child and report back.
  
•  In creative ways – drawings, letters, or videos may be used, especially with younger children.
  

The goal is to make the process child-friendly and to ensure the child feels heard, without placing them in the middle of a parental dispute.

It’s important to note that while a child’s opinion is considered, it’s not the only factor. The court’s overriding duty is always to make a decision in the best interests of the child. That means even if a child expresses a preference to live with one parent, the court will also look at areas such as stability and routine, each parent’s ability to meet the child’s needs, the importance of maintaining meaningful relationships with both parents, and any issues around safety or welfare.

As children grow older and demonstrate maturity, their views will usually carry greater weight. In practice, the wishes of teenagers are often decisive, as forcing them to live somewhere against their will is rarely workable.

At Ness Gallagher we believe Court should be a last resort. Parents are encouraged to agree child arrangements themselves, through negotiation or mediation, always keeping the child’s welfare, and their voice, at the heart of the process. Our specialist family lawyers help parents navigate these sensitive issues with care and clarity, ensuring that children’s views are respected while protecting their long-term wellbeing.

If you are facing separation and want advice on child arrangements, please get in touch and we can guide you through your options, from mediation (Louise Gillies who heads up our Family Law team at Ness Gallagher is an Accredited Mediator) to court representation, always keeping your child’s welfare at the centre.