When can a child decide which parent they want to live with?

[stripeylion3]

I'm in oz so no doubt things are different here but am interested in what happens over there.

We have 3 DC and I'm about to leave but I know H will try to take our middle child as he is playing super Dad lately. This is the chronic asthmatic who H smokes around.

Any replies will be gratefully received, thank you.

To be honest, I don't know how are going to make the smoking thing stick. You've lived with him all this time accepting that he smokes outside the house - what possible grounds/proof can you have that this will change?

You've either put up with him doing something that jeopardises your son's health for years without it being a huge issue until you decide you want a divorce, in which case it will look like petty point scoring, or you admit that he has been careful to smoke outside up until now, in which case the courts will have no reason to believe he is about to change that pattern of behaviour just because you say so.

The point about smoking is that so far, the OP has been there to manage it, prevent him from smoking in the house and to take the DC to hospital.
If he has unsupervised contact, the safety net will not be there. I would try to use the smoking to limit contact to day time stays of one day and not during holidays. And certainly to prevent the DC from living with him.

If he claims he will stop smoking, then he should prove first he has stopped for a given period of time, and be tested to prove it.

A judge might agree or not, but that's what I'd ask for.

Lweji, and others, yes, those things have crossed myimind and I did have a revelation about offering Saturday, Sunday and a weekday after school and no nights.

I'm confident this could be granted as he will have no accommodation in the short term.

Although I don't expect him to cooperate at all. I think he will go no contact and try to fight me in court as he is keen on getting child benefits . Though he has little or no resources available so it's a risk I'm willing to take.

If he went no contact with the children, how would he expect to gain full custody?
Not being a lawyer, I'd still take him to the ground on that one.

Anyway, I'd prepare for all possibilities. He could instead become the greatest dad alive (in appearance) until court. So, I'd get as much evidence now of his lack of interest.