The very idea of ‘divorce your parents’ might seem absurd to many. Contrary to popular belief, questions about divorce your parents are often asked by children who are facing significant issues when staying with their parents.
Family lawyers often deal with matters related to ‘divorce your parents.’ This article aims to explore some of the relevant topics under this subject. In doing so, we will explore the differences when children who are over 18 divorce their parents versus when children who are under 18 divorce their parents.
In many countries the process of divorcing your parents is called as child emancipation, or simply as emancipation. Once you divorce your parents, you will no longer be under control or authority of your parents, and your parents will have no responsibilities to uphold.
Cases related to ‘divorce your parents’ are handled by the Children’s Courts. If there is good reason to make an application, the child must apply at the Children’s Courts. Much like divorce cases between two spouses, a child can make an application on the basis of “irreconcilable differences.” However, most often, a child wishes to make an application to divorce their parents when the parents have caused them significant harm.
In discussing the topic of ‘divorce your parents’, let’s also understand a few scenarios where a child may choose to be emancipated from their parents.
Reasons Why Emancipation Is Considered
The child may wish to leave their parents when his/her well-being is at stake. These are some reasons behind this decision:
- Physical injury;
- Sexual abuse;
- Child abandonment;
- Death or incapacity of parents;
- Emotional or psychological harm or neglect
Divorce Your Parents: Children Who Are Under 18
For children who are under 18 years of age, or in other words if they are still minors, when they divorce their parents, the state generally becomes their guardian. This would mean that the parents will no longer have any parental responsibility or duties to undertake.
A parent can also make an application to the Children’s Courts. If a parent or child applies for this at the Court, the Court will grant an order if it deems this to be in the best interests of the child.
If the child is at risk of being harmed by the parents, it is likely that such an order will be made to ensure that the child is protected, and to ensure the safety and well-being of the child.
The courts can make such orders even in cases where the parents and child have reached a point of irreconcilable differences. These orders can be made in this scenario even in the absence of harm.
Irreconcilable difference is the sort of difference that cannot be changed between two parties, and from which point there can be no agreement made.
In cases where you wish to divorce your parents because of irreconcilable differences, the courts will need proof that mediation and family dispute resolution did not yield desirable outcomes.
If proof of mediation and family dispute resolution is not provided, the courts will not grant a court hearing date for the case to proceed. Where these methods are failed, a court hearing will take place. Following the court hearing if the child is successful in their application, the state will become their guardian.
However, such orders are very rare and such cases are usually tackled with mediation and family dispute resolution.
Divorce Your Parents: Children Who Are Over 18
When the child who wishes to emancipate from their parents is an adult, there is no legal procedure to follow. Rather, this process when the child is an adult is called “estrangement. The gradually detaches himself/herself from their parents.
However, in such situations, certain legal complexities can arise when adult children have become estranged from their parents. This can happen in case of the next generation, i.e., when the adult child has kids of their own, his/her parents might want to be involved in the upbringing of their grandchild.
Under Section 65C of the Family Law Act (1975), grandparents have the right to apply for parenting orders. There are legal avenues which will allow the grandparents to have access to their grandchildren.
Possible Outcomes Of Such Cases
Once applications at the Children’s Court has been made, the parents’ current circumstances will be gauged, and the child’s best interests – as stared in Section 60CC of the Act – will be considered.
In case the Court thinks that there is a chance for the differences between parents and child to be resolved, such orders can be made:
- The child will continue living with his/her family, but the State will share responsibility over the child, and assist the family in resolving issues;
- The child is not safe with the family and so the State removes the child from their care temporarily (12 months in some cases) with the aim to reunite them when issues have been resolved;
- The child will continue living with the family, provided that a formal pledge or an undertaking should be given.
In case the Court thinks that there is very little chance of resolution, and that the differences are major, such orders can be made:
- A carer will be appointed for the child. The carer can be someone from extended family who will have parental responsibility of the child for up to two years;
- A long-term carer will be appointed who will have parental responsibility until the child turns 18;
- A permanent carer will be appointed and he/she will have sole parental responsibility
Importance Of Seeking Legal Advice
For many, this is an emotional topic which brings a lot of pain and stress. As family lawyers, we understand the stress that you must be going through. Legal advice should be sought to help you out of this difficult situation.
Contact our friendly team today.