When parents separate, one of the most sensitive issues is how children’s voices are handled in disputes. Many parents believe that if a child says “I want to live with Mum” or “I want to stay with Dad,” then that wish will decide the case. In reality, things are more complicated, when dealt with in the Family Court.

Section 6(2)(b) and the child’s voice

The Care of Children Act 2004, section 6(2)(b), says that a child’s views must be taken into account. This comes from the United Nations Convention on the Rights of the Child (UNCROC), which says children have a right to express their opinions.

But this does not mean a child’s view will be followed. In Brown v Argyll (HC Rotorua CIV-2005-463-18, 9 May 2006, [49]) the High Court said:

“Section 6(2)(b) requirement for the court to take the child’s views into account does not mean such views must be followed or are in any way determinative.”¹

In GLE v MMW [2021] NZHC 1862, the Court explained that:

“The Act mandates that the child’s views must be taken into account, but her/his views wouldn’t automatically determine the outcome. The Judge still needs to be satisfied that giving effect to the child’s views is in her welfare and best interests according to the particular child’s age and maturity, her particular circumstances and if the child’s views are influenced.”²

In family disputes, children’s voices are important, but their wishes are not automatically decisive, particularly when the decisions involve serious long-term consequences. As noted in [Watkins v Watkins [2020] NZFC 9832, 19 November 2020, at [53]]:

“There is also a concern that while children should always have a feeling of ‘being heard’ they should not bear responsibility for making decisions, particularly in the case of adolescents:
The adolescent brain is in effect ‘under construction’, hence the risk-taking behaviour, poor judgment and problems with impulse control often observed in adolescence. To make informed decisions, one has to be able to anticipate and understand the future consequences of different options. But it is not until the early 20s that the brain completes the maturation process. By law, younger adolescents are not permitted to vote, consume alcohol, drive without a licence, or be truant. Typically, good parents do not permit their children in adolescence to refuse to go to school or to receive medical treatment. Logically then, proponents maintain that children should not be permitted to make a life-changing decision such as severing ties with one parent or their grandparents or other relatives.”(Fidler and Balan, supra, page 32)

So, when family disputes are addressed in the Family Court, it’s not whether children get to say what they want that matters most — it’s how much weight is given to those views. In the Family Court, the key isn’t just hearing the child’s views but deciding how much weight to give them. That depends on several factors the judge will consider. For example:

• Age and maturity of the child – Older or more mature children’s views usually carry more weight than those of younger children.
• Consistency of views – Courts look at whether the child has expressed the same view over time or whether their opinion shifts depending on circumstances.
• Level of understanding – Judges consider whether the child understands the implications of what they are saying (e.g., long-term consequences of choosing one parent).
• Independence of views – If the child’s view seems influenced or pressured by a parent, the court may give it less weight.
• Emotional wellbeing – A child might express a preference that reflects short-term comfort but not long-term welfare; the court balances this carefully.
• Practical considerations – The child’s wishes must fit within what is realistic and safe, such as school, community ties, or travel logistics.
• Best interests of the child (paramount principle) – Ultimately, children’s views are one factor in a broader assessment of welfare and best interests.

What research tells us

Dr. Megan Gallop, a New Zealand researcher in child psychology and development, has pointed out that involving children too directly in family disputes can put them in a difficult position:

“Others view involving children in family decisions as placing them in a loyalty bind or as imposing unfair responsibilities that may burden (or provide) them with an inappropriate degree of power.”³

She also noted that not all children want to be heard—and that must be respected too.

Other researchers warn that what children say in reports may not always reflect their genuine feelings. A child under pressure or influence from a parent may not be able to freely say what supports their wellbeing.⁴

Jill Goldson’s New Zealand study of child-inclusive mediation added another perspective. She found that children consistently expressed a strong desire to have a say during separation, not to decide outcomes, but to feel understood. One child put it simply:

“It’s like, hello, I am a voice, let me talk.” (Girl, 11)⁵

Children in her research said being able to speak reduced their anxiety and helped them cope. They valued having their opinions shared with both parents in a safe way, without being forced to choose sides. Parents also reported becoming more aware of how conflict was affecting their children when they heard their voices directly.

Together, these studies show that children benefit when their voices are heard, but the weight placed on those views must be carefully judged to protect them from unfair pressure.

Needs vs. wishes

Children, especially when young, don’t always understand the long-term effects of their choices. Their wishes may change quickly or be shaped by a parent’s influence.

That’s why the focus is on their needs—safety, stability, emotional security, and strong relationships with both parents—rather than just their stated wishes.

Example: A four-year-old may want to live with the parent they see on weekends, without understanding that regular care from both parents supports their growth and stability.

Age, maturity, and weight of views

The real issue is not whether children express a view — but how much weight that view carries. Generally, the older and more mature a child is, the more weight their views receive:

• 0–4 years old: No or very light weight
• 5–7 years old: Light weight
• 8–11 years old: Medium weight
• 12–16 years old: Heavy weight

This isn’t a strict rule — it depends on the individual child, their maturity, the seriousness of the situation, and whether their views are genuinely their own.

How children’s voices are obtained

Children are usually not asked to speak directly in front of parents. Instead, their views are passed on through:

• Lawyers for the Child – independent representatives for the child.
• Specialist reports – psychologists or social workers who summarise what the child has said and how they are coping.

This is meant to keep children out of the direct conflict between parents.

The reality for parents

For parents, the key point is this: children’s views matter, but the weight given to those views depends on age, maturity, and influence.

Children should not be burdened with making choices between parents. Their voices are one piece of the puzzle, but decisions are ultimately made by adults.

Key takeaway

As a parent, it’s natural to focus on what your child says they want. But the law treats wishes and needs as different things.

The research and case law — including Brown v Argyll, GLE v MMW, and the work of Dr. Megan Gallop and Jill Goldson — all highlight the same message: children should be listened to, but the weight of their views will vary, and they should not be put in the position of carrying responsibility for adult decisions.

References

1. Brown v Argyll HC Rotorua CIV-2005-463-18, 9 May 2006 at [49].
2. GLE v MMW [2021] NZHC 1862.
3. Gallop, M. (2011). Children’s involvement in custody and access arrangements after parental separation. Wellington: Ministry of Social Development.
4. Birnbaum, R., & Bala, N. (2010); Birnbaum, R., Bala, N., & Cyr, F. (2011); Cashmore, J. (2003); Cashmore, J., & Parkinson, P. (2008).
5. Goldson, J. (2006). Hello, I’m a Voice, Let Me Talk: Child-Inclusive Mediation in Family Separation. Families Commission, Innovative Practice Research Report No. 1/06.

Disclaimer:
The information in this article is provided for general educational purposes only. It is not legal advice and should not be relied upon as such. Every family situation is unique, and you should seek advice  and guidance specific to your circumstances.