When parents separate, child custody is usually the most contentious issue. Presumably, both parents will have different ideas on how custody and visitations should be arranged. Some states may allow the child to choose which parent they want to live with. In Arizona, however, the child cannot express their own choice on which parent shall have custody.
Taking a child’s wishes into consideration
Arizona law doesn’t give a child the right to be interviewed or to appear in court. The court, however, has the discretion to find a way to determine what the child’s wishes are. Judges are strongly against a child testifying in court. This helps the child avoid being caught in the middle of their parents’ clash for custody.
While hearing a child’s opinion is left to the discretion of the court, it must be first determined if the child is of an appropriate age and level of maturity for that opinion to be considered.
The court will usually consider interviewing a child if the child is about 12 years or older. During the interview, the older the child, the more importance the court will give to their wishes.
Some factors the court would consider in allowing testimony include:
- The child’s wish to testify and their capability to express opinion
- How the child will be affected emotionally and psychologically
- How significant, trustworthy, and relevant the child’s testimony is for the judge to reach the final decision on the issues.
How a child’s voice is heard in Arizona’s family court
In Arizona courts, judges are often aware of the struggle and stress a child will go through when stating their choice in front of their parents. That is why a child won’t be allowed to testify about their choices in open court.
The child can be interviewed in the judge’s chambers to determine their desired custodian and visitation arrangement. In this way, the child will not be influenced by either parent to tell a different story.
A court reporter is usually assigned to make a recording of the interview. The judge, however, can choose that the recording be sealed and kept private to protect the child’s interests. The parents can give their consent and allow the judge to interview their child out-of-courtroom.
There are other ways a judge may get a child’s opinion.
- The judge can assign a custody evaluator to make an assessment after one or more interviews with the child. The evaluator will then make a report to the judge which summarizes what child has said.
- The judge can also assign an attorney to represent the child’s interest alone. The lawyer will interview the child and act as an advocate for the child’s position in the same capacity as the attorneys for the child’s parents.
- In highly disputed family court cases, a guardian ad litem could be assigned by the court to represent the child. The guardian ad litem does not speak on the child’s behalf, but ensures that the rights and best interests of the child are protected.
How old should a child be to decide which parent to live with?
Although there is no prescribed age where a child’s opinion becomes essential, teenagers can express themselves more distinctly due to their maturity and experience gained in life compared to younger children.
An Arizona court allows a child’s custodial preferences when the child has reached “sufficient age to form an intelligent preference. “Arizona courts have no particular age that allows the child custodial preferences. Judges must make case-by-case rulings derived from specific situations. There have been cases, however, where children as young as seven have had their opinions considered by the court.
How will the court consider a child’s custodial preferences?
The court may consider a child’s custodial preferences if it is an “intelligent preference.” This requires that the child’s decision be founded on something that’s bound to last like respect and a loving relationship, and not something that is short-term and fleeting. Preference must also be based on important matters and not petty ones such as whether a parent allows the child to leave their vegetables untouched on the plate, or which parent allows TV on school nights.
The court should also examine if the child was forced or threatened to “prefer” a particular parent. The court will be very cautious in considering a child’s wishes if it appears the child has been instructed beforehand.
While the court should consider a child’s custodial preferences if they are expressed intelligently, the court is not compelled to grant them if it is not in the best interest of the child. The child’s wishes don’t take precedence over the other factors for custody.
If you have questions and other concerns regarding family law, contact our qualified Phoenix family law attorneys at Goldman Law, LLC. We can help you find the best approach to resolving your issues on parental rights and responsibilities.