Determining child custody is often the most important and difficult task to consider when parents separate or file for divorce. It's common for both parents to have a different opinion on what custody and visitation arrangement is in the child's best interest. If the children are old enough, they may also have an opinion on where they should live after the divorce.
In many states, including Arizona, judges must consider the child's preference when deciding custody, but that's only one of the factors a judge will evaluate.
This article will explain how a child custody in Arizona is determined. 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.
When parents can't agree on a custody arrangement for their child, the court will decide for them. Arizona judges must consider several factors when determining custody, including each of the following:
When the court determines custody, the judge must state the factors that played a part in the decision in the final order. (Ariz. Rev. Stat. Ann. § 25-403 (B).)
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, so 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." In other words, the child can't base a decision on something trivial, such as which parent's house has better toys or which parent allows the child freedom to choose ingredients in meals.
When deciding whether the child's preference should influence the custody decisions, the judge looks at whether the child's reasoning stems from a permanent place, such as the child having a better relationship with one parent over the other, and not something likely to change on a whim.
The court must also consider whether either parent coerced or pressured the child into expressing an opinion one way or the other. Courts will be very wary about considering a child's custodial preference if it appears either parent coached the child before the interview.
The court must consider the child's preference if it meets the requirements, but the court doesn't have the follow the child's choice if it's not in the child's best interest. The child's preference doesn't outweigh the other custody factors in Arizona.
Arizona courts won't force a child to testify about his or her custodial preferences in the courtroom, and judges are usually sensitive to the difficulty a child would have stating a preference in front of the parents.
In Arizona, the judge has the power to interview the child in court chambers to discover the child's preferred custodian and visitation schedule. (Ariz. Rev. Stat. Ann. § 25-405 (A).) In this situation, a court reporter will usually record the interview, although the judge may rule that the court to seal (keep 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. (Ariz. Fam. Law Proc. Rule 12.)
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 the court appoints a professional, the parents' attorneys can cross-examine him or her just like they would any witness.
Arizona law splits custody into two categories: legal decision-making (legal custody) and parenting time (physical custody.) The court can award joint decision-making or sole decision-making between the parents. Instead of "awarding" physical custody to one or both parents, the court will create a parenting time schedule for each parent after evaluating what's best for the children. (Ariz. Rev. Stat. Ann. § 25-401.)
If the court awards one parent primary parenting time (meaning the child lives with that parent more than 50% of the time), the judge considers the other parent to be the "non-custodial" parent and will award that parent reasonable parenting time. (Ariz. Rev. Stat. Ann. § 25-403.01 (D).)
While the judge must evaluate each case on an individual basis, it's common for the court to award a non-custodial parent time with the child every other weekend, every other holiday, and half of all school breaks and vacations.
There are some cases where parenting time between a parent and child isn't healthy because it risks jeopardizing s a child's mental or physical health or safety and well-being. For example, if the court finds that a parent has a history of domestic violence against the other parent or the child, the court may order supervised parenting time, which occurs only with a court-approved third-party present or in a state-sanctioned visitation facility.
If the parent would like unsupervised parenting time, it's up to that parent to provide proof to the court that parenting time will not endanger the child or significantly impair the child's emotional development. (Ariz. Rev. Stat. Ann. § 25-403.03.)
If you have additional questions about the effect of children's custodial preferences, contact an Arizona family law attorney for help.