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How old does a child have to be to decide which parent s/he would like to live with?

Posted by Jared E. Holland | Sep 20, 2023 | 0 Comments

In Arizona, Superior Court judges are tasked with determining the “best interests” of minor children when it comes to legal decision-making and parenting time. The court is required to “consider all factors that are relevant to the child's physical and emotional well-being.” A.R.S. § 25-403(A). One of the many factors that the court must consider is “[i]f the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.” A.R.S. § 25-403(A)(4). It is important to note that the wishes of a child of suitable age and maturity to form an intelligent custody preference “are persuasive, although not controlling.” J.A.R. v. Superior Court In and For County of Maricopa, 179 Ariz. 267, 274, 877 P.2d 1323, 1330 (App.1994). That said, a court is likely to find an older and mature child's opinion to be more persuasive than other factors in a case which does not include more serious allegations such as domestic violence or substance abuse.

Because courts are not keen on having minor children give sworn testimony in court and no attorney wants to aggressively cross-examine a child, a child's wishes are most often expressed out of court and constitute impermissible hearsay that cannot be used in court. To remedy this common problem, Arizona law enables a judge to “interview the child in chambers to ascertain the child's wishes as to the child's custodian and as to parenting time.” A.R.S. § 25-405(A). The judge is also able to “seek the advice of professional personnel, whether or not employed by the court on a regular basis.” A.R.S. § 25-405(B). But the “advice given shall be in writing and shall be made available by the court to counsel, on request, under such terms as the court determines.” Id. These professionals are also subject to being examined as witnesses at trial, unless that right is waived. Id.

In some cases, the court may feel that it is appropriate to appoint a “child's attorney” or “best interests attorney” to represent the child's interests. Unless they are volunteers, these attorneys can be costly and parents may be left paying the bill even when the attorney advocates against one or both of the parents.

Regardless of what method the court uses to determine whether the child is of suitable age and maturity to express a preference, the wishes of a minor child are only one factor to be weighed by the court in a custody dispute. Parents would be well advised to not focus solely on a child's desire and provide evidence relating to all of the factors affecting the issues of legal decision-making and parenting time. The attorneys at Holland Law Group, PLLC are happy to discuss the specifics of your case and strategies to help you achieve the best outcome for your children. Call to schedule a consultation with our expert family law attorneys today!

About the Author

Jared E. Holland

Senior Partner


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