When is a Child Allowed to Choose the Parent They Want to Live with After Divorce?
Child custody proceedings in Arizona are entirely based on the child’s best interest. Older kids can express a custodial preference on their own which is why many parents wonder whether this preference is taken in consideration by court. Children in Arizona do have certain legal rights when their parents are getting divorced. Expressing a preference about the parent to live with after divorce is one of these rights.
Arizona Law Overview
Arizona Revised Statutes do not feature a legal provision that allows minors to choose the parent that they want to live with after divorce. There are several reasons why – children can change their mind regardless of age and they could easily be influenced by one of the parents.
Additionally, giving a child the formal right to pick a custodian puts them under a lot of pressure. It’s not always a clear-cut situation in which one parent is the good guy and the other is the bad one. Many kids simply cannot handle the pressure and the responsibility, regardless of their age.
The most important factors that will be taken in consideration during a custody hearing include the following:
- The physical and mental health of both parents
- Their ability to provide financially for the needs of the child
- The emotional connection that the child has with the respective parent
- Whether there will be a need to change home, school, community, etc. if the child stays with one of the parents
- Whether there is a history of domestic abuse in the family
If there isn’t a massive conflict or violence in the family, a court is likely to grant the two parents joint custody over kids. It’s also possible for legal custody to be shared, even in cases when one of the parents is granted primary physical custody (thus becoming a custodial parent).
The Desires of Children do Matter
While there’s no legal provision in Arizona to let children pick the parent that they want to stay with after a divorce, courts will definitely want to hear from older ones.
According to Arizona laws, a court will consider the opinion of the child when they are of “sufficient age” to establish preference intelligently. The exact age is not stated in Arizona Revised Statutes. Usually, judges are given the freedom to decide on a case-by-case basis. The maturity of the child is definitely of importance when it comes to them stating a preference.
When expressing a preference, a child has to base the decision on something substantial. This is called intelligent preference. A trivial reason like one of the parents buying kids toys more often is not considered intelligent preference.
While the child is expressing a preference, a court faces the difficult task of determining whether it is a genuine one. On occasions, older children may be pressured into saying that they want to stay with one of the parents. This is the main reason why when being questioned, children are asked to provide an explanation of their desire that is based on something permanent (like having a better and stronger relationship with one of the parents, for example).
A court in Arizona has to consider the desire of the child, whenever intelligent preference is established. The court, however, has no obligation to make the custody ruling on the basis of the desire of children. Once again, the court may determine that the preference isn’t in the best interest of the child and rule against it.
Depending on the situation, the court may also order for a lawyer to be appointed for the purpose of representing the child in a divorce proceeding. The role of this attorney will be to carry out a thorough interview with the child and defend their position, just like a divorce attorney will be there to represent each of the former spouses.