Can Children Express Preference in Arizona Custody Proceedings?

Wondering whether children can make their own decisions about custody? Learn more here.

Determining child custody is often the most important and difficult task when parents separate. Each parent will likely have a different opinion on what custody and visitation arrangement is in the child’s best interest. The child may also have his or her own opinion on which parent gets custody. In many states, judges must consider the child’s preference when deciding custody.

This article will explain how a child’s preference affects custody in Arizona. If you have additional questions about the effect of a child’s custodial preference in Arizona after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Arizona

When parents can’t agree on a custody arrangement for their child, the court will decide for them. Arizona judges must consider a number of factors when determining custody, including each of the following:

  • the past, present, and potential future relationship between each parent and the child
  • each child’s relationship with his or her parents, siblings, and any one else who may affect the child’s best interest
  • the child’s adjustment to home, school, and community
  • the child and parents’ mental and physical health
  • which parent is more likely to encourage a relationship between the child and the other parent
  • whether either parent has committed domestic violence or child abuse
  • whether either parent has intentionally misled the court to gain an advantage in the litigation, or made a false report about child abuse or neglect
  • the child’s wishes, if the child is of suitable age and maturity, and
  • any other factors relevant to child custody.

When the court determines custody, the judge must state the factors that played a part in the decision. To read more information about custody decisions in Arizona, see Child Custody in Arizona: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

Arizona law states that the court will consider a child’s opinion on custody when the child is of “sufficient age to form an intelligent preference.” There’s no specific age in Arizona when the court has to consider the child’s preference; judges have to make a case-by-case determination based on the particular situation. However, courts have considered the opinions of children as young as seven.

For the court to consider the child’s preference, it must be an “intelligent preference.” This means that the child’s decision can’t be based on something trivial, such as which parent’s house has better toys, or which parent allows the child to eat what he or she wants. The child’s preference also should be based on something that is likely to be permanent, such as the child having a better relationship with one parent over the other, and not something that is likely to change on a whim.

The court must also consider whether the child was coerced or pressured by a parent to select him or her over the other parent. Courts will be very wary about considering a child’s custodial preference if it seems like the child has been coached.

The court must consider the child’s preference when it is intelligently made, but the court doesn’t have the follow the child’s preference if it’s not in the child’s best interest. The child’s preference doesn’t outweigh the other custody factors in Arizona.

Do Children Have to Testify About Their Custodial Preferences in Court?

Arizona courts won’t force a child to testify about his or her custodial preferences in the courtroom; judges are usually sensitive to the difficulty a child would have stating a preference in front of the parents. The judge has the power to interview the child in court chambers to discover the child’s preferred custodian and visitation schedule. In this situation, a court reporter will usually record the interview, although the judge may rule that the interview be sealed (kept private) if it’s in the child’s best interests. The parents can also agree to allow the judge to interview the child off the record.

Alternatively, the judge may appoint a professional, such as a custody evaluator or guardian ad litem (attorney for the child), and allow that professional to testify about the child’s preferences. When a professional is appointed, the parents’ attorneys can cross-examine him or her just like they would any witness.

If you have additional questions about the effect of children’s custodial preferences, contact an Arizona family law attorney for help.

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