Key points
This case in 30 seconds
- Situation
- The client has a child under 18 with the other parent, and an earlier custody order says the child lives with the client. As the child has grown older, the child has said they want to move in with the other parent.
- Approach
- We explained how the court considers a child’s wishes and the procedure for varying the order, and helped the client organise information and prepare the application documents.
- Result
- Later, the child’s move to live with the other parent was gradually put in place. The child was able to settle in early, and contact with the client was kept up.
Three points for handling this well
- The court listens to who a child wants to live with, taking account of the child’s age and understanding.
- As the child grows or life changes, you can apply to change the arrangement.
- If you can agree, you can make the agreement yourselves; if not, the court decides.
Background
The client has a child under 18 with the other parent, and an earlier custody order says the child lives with the client.
Custody: Who makes major decisions depends on the earlier custody order.
Care and control: Who the child mainly lives with in daily life.
As the child has grown older, the child has said they want to move in with the other parent.
The client wanted to understand the position fully before deciding what to do next.
- Not sure how the court will consider the child’s wishes
- Don’t know whether the current order needs to be varied
- Worried how moving in with the other parent would affect the child’s life
The client wanted to understand how to handle the whole matter before the child moved.
Where a child says they want to move in with the other parent, the first thing to do is understand what the court considers in this kind of application.
Why first understand what the court considers, and then apply for a variation?
In this case we chose to understand what the court considers first, because it is common for a child’s wishes to change as they grow older.
How does the court consider a child’s wishes?
The court listens to who a child wants to live with, taking account of the child’s age and understanding.
The older the child, the more weight their wishes carry.
The law sets no fixed age.
The court considers a child’s wishes according to the child’s age and understanding, but the child’s interests come first in the end.
How can you apply to vary a custody order?
We explain how the court considers a child’s wishes and the procedure for varying the order.
| Current arrangement | After variation | |
|---|---|---|
| When it applies | Followed as set out in the earlier order | The child’s wishes or circumstances have changed |
| Purpose | Keep the existing arrangement | Set new arrangements to suit the new circumstances |
| Step 1 | Pay attention to the child’s wishes | Organise the child’s current living situation |
| We help | Explain the current arrangement | Explain the procedure and prepare documents |
As the child grows or life changes, you can apply to change the arrangement.
If there is a major change in the child’s or the parents’ circumstances, either side can apply to the court for a variation.
What else can be done if the situation is different?
If you can agree, you can make the agreement yourselves; if not, the court decides.
Similar situations may also relate to “Access not going ahead as ordered: enforcement or variation” or “Children and a disagreement over arrangements: mediate first”, which you may read alongside.
Once you understand what the court considers, what remains is knowing how each stage works in practice.
How we helped
From the first consultation to putting the agreement into effect, the same dedicated consultant follows your case. Our help comes in three stages.
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Gathering details
From the first consultation
At the first consultation, the dedicated consultant first finds out about the child’s current living situation and wish to move in with the other parent.
We help the client organise information on the child’s current living situation and wish to move in with the other parent.
Getting the current situation clear is the first step towards applying for a variation.
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Application stage
Once everything is in order
We explain the procedure for applying to vary a custody order and help prepare the related documents.
The documents are filed together only once they are ready.
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Arrangements put in place stage
After the court deals with it
Next, we remind the client to watch how the child settles into the new arrangement.
Following up on the new arrangement helps the child settle in quickly.
Throughout, the client can call the dedicated consultant with questions, in Cantonese, Mandarin or English.
We explained every court letter first, and what needed following up.
We are a divorce consultancy. We help you organise information, prepare documents and understand the procedure. If your case needs legal advice or a representative in court, we will tell you honestly and help you make other arrangements.
With the three stages joined up, this was the outcome.
Outcome
Later, the child’s move to live with the other parent was gradually put in place; the child was able to settle in early.
Because a custody order was already in place, the application procedure was to ask the court for a variation in light of the child’s wishes and changed circumstances, with no need to start afresh.
For the child, the biggest difference is that living arrangements now match what they want, and time together feels natural again.
Throughout, the dedicated consultant helped organise documents and reminded the client to watch how the child settled into the new arrangement.
Without first understanding what the court considers, preparing a sound application often takes longer.
The client now keeps in touch with the child under the new arrangement, and the child’s life has moved over smoothly for the most part, which was what he cared about most at the start.
How does the procedure change if your situation is different?
The approach in this case follows from the child having stated a clear wish; if the situation differs, the approach will change too.
The child has not stated a clear wish: When the position is unclear, you can first find out what factors the court generally considers.
The other parent does not agree to a variation: If agreement cannot be reached, the matter can be left to the court.
I just want to try it for a while: If necessary, you can also first find out how temporary arrangements work.
Three things you can do first in a similar situation
- First find out what factors the court looks at when considering a child’s wishes.
- Check whether the child’s wishes are consistent and clear.
- If the situation continues, find out how to apply to vary a custody order.
FAQ
A child says they want to move in with the other parent. How can we handle it?
We explain how the court considers a child’s wishes and the procedure for varying the order, and help organise information and prepare the application documents.
At what age can a child decide who to live with?
The law sets no fixed age.
The court considers a child’s wishes according to the child’s age and understanding, but the child’s interests come first in the end.
Are a child’s wishes the only thing the court considers?
The court listens to who a child wants to live with, taking account of the child’s age and understanding.
The older the child, the more weight their wishes carry.
Will the current care and control change automatically because of the child’s wishes?
If there is a major change in the child’s or the parents’ circumstances, either side can apply to the court for a variation.
If a child’s wishes change, can the custody order be varied?
As the child grows or life changes, you can apply to change the arrangement.
What counts as a “significant change” that allows an application to vary?
If there is a major change in the child’s or the parents’ circumstances, either side can apply to the court for a variation.
How can you apply to vary a custody order?
We explain the procedure for applying to vary a custody order and help prepare the related documents.
If the other parent does not agree to the child moving in, what else can be done?
If you can agree, you can make the agreement yourselves; if not, the court decides.
Do you give legal advice or represent clients in court?
We are divorce consultants. We help you gather information, prepare documents and understand the procedure.
If your case needs legal advice or court representation, we will tell you honestly and help you make other arrangements.
Illustrative case: this page is adapted from similar cases we have handled. The people and details have been changed, and it is not a record of an identifiable client.
Every case is different, and the time taken and the result will vary. This page is general information only. It is not legal advice and is not a promise about your case.
