Parents of divorced or separated parents often want to know when their children can decide where they want to live. In fact, Arizona has no “magic age” at which the children can choose their own parenting time schedule.
The Court does consider the wishes of the children in determining custody and parental access. The Court has the authority to interview the children or have court personnel or a private custody evaluator interview the children. Parents can request such an interview.
While the Court is required to analyze the wishes of the children, the children’s wishes are just one of many factors the Court must consider. See A.R.S. Section 25-403. The statute states:
A. The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:
1. The wishes of the child’s parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
7. Whether one parent, both parents or neither parent has provided primary care of the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
9. Whether a parent has complied with chapter 3, article 5 of this title.
10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
11. Whether there has been domestic violence or child abuse as defined in section 25-403.03.
B. In a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.
Therefore, even if the children want to live with one parent, the Court will not necessarily enter an order consistent with the children’s wishes, if the Court does not feel it would be in the children’s best interests. The Court generally puts more weight on the wishes of older children.
In addition to having to balance the wishes of the children against the Court’s other considerations, the Court must determien whether the children’s stated wishes are genuine or a result of parental manipulation.
Parents may want to consider the potential harm of having the children involved in their legal matter. It is generally believed that it is detrimental to children to make them “choose” one parent over the other. Also, this author has seen a number of parents manipulate children in order to get them to say bad things about the other parent, or to specifically say that they don’t want to live with the other parent. Children want to please their parents and may tell both parents different things, in accordance with what that parent wants to hear. Or, children may feel like they have to side with the more manipulative parent. Ultimately, children experiencing high levels of parental conflict often suffer emotional problems as adults. This author discusses the research that supports this conclusion in a previous article: http://azmediator.com/divorce-in-arizona/.
While the children’s wishes are important, there is a way for parents to address this concern without harmful litigation. The parties can work together in mediation (a highly successful process in which the parents work with a neutral party to resolve their matter out of court) to come up with a parenting plan in the children’s best interests. If the parents need the help of an outside professional to know what is best for the children, the mediator can recommend a child specialist to assist the parents in this process. The child specialist may meet with the children. However, within mediation, the process will be safe, cooperative and as undisruptive as possible for impressionable and vulnerable children. When parents work together, the children benefit.
Alona M. Gottfried is a family law mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or firstname.lastname@example.org. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260