Chapter 14
What Is a “Mature Minor”?
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competent child, for the purposes of family law, is one whose capacities
and maturity are such that parental authority over the child is displaced
in relation to a particular issue. In other words, a court may find that
whilst parental responsibility continues to vest in the parents, the child
may make decisions in their own right that are inconsistent with the
express wishes of the parents with respect to the child.
…
It is also possible
that the child is competent to make decisions in relation to certain issues,
but not competent enough to make decisions in relation to other issues.
For example, a particular child may have sufficient maturity to make a
decision in relation to whether or not they attend a particular school, but
not mature enough to make a decision in relation to living with a person
other than his or her parents.
…
The child’s age is not determinative of his
or her relative maturity and hence capacity. The maturity and capacity of
each child should be considered individually.
An important consideration
is, however, the ability of the child or young person to understand the
consequences of their decision, if it is acted upon. (emphasis added)
Surveys of Australian family law professionals, postdivorce parents, and
their children reveal that, although jurists seldom choose to interview
children with regard to custodial preferences (Parkinson & Cashmore,
2007), parents and children strongly believe that the child’s opinion
should be taken into account (Cashmore & Parkinson, 2008). When
queried as to a minimum age at which this should occur, children
generally suggested that age 7 was sufficient. By contrast, parents diverge
widely on this topic, some recommending that children as young as 2
or 3 years of age should be heard, while others set the threshold as
high as age 14. Many deferred to contextual variables (e.g., the presence
of family violence) and to the child’s “maturity” (Cashmore & Parkin-
son, 2008).
A majority of both parents and children interviewed in these studies
expressed concerns that the child’s opinion with regard to custody
would have negative consequences for one or both of the child’s parental
relationships. In the extreme, a minority of parents judged that such
negative consequences outweigh the child’s potential benefit being
heard. For example:
Ten parents (11.8%: seven fathers and three mothers), seven of whom
were involved in contested matters
…
rejected the idea of their children
being involved in the [custodial] process for two main reasons: first, the
inappropriate pressure and burden of responsibility this places on children,
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