Can a Child's Wishes Influence Custody Decisions?

Child custody and visitation — or legal decision-making and parenting time, as they are officially known in Arizona — can be among the most trying elements of a divorce. Splitting up a family is never without emotional anguish, much of which is often suffered by the children. Sometimes, a child will have a definite preference as to which parental home they’d rather spend the bulk of their time in. This preference tends to be more acute as the child becomes a teenager.

In some states, children reaching a certain age have the final say about which parent they want to live with. That is not so in Arizona. By state statute, a court must make custody and visitation awards based on what is found to be in the child’s best interests. This is done by considering a number of relevant factors, mostly having to do with assuring the child’s physical and mental health and fostering good relationships with both parents. Among these factors are the child’s own wishes, but only if the child is deemed to be “of suitable age and maturity.”

There is no “suitable age” stated in the statute, nor is “maturity” defined. However, case law has interpreted these terms to mean that the child be of sufficient age to form an “intelligent preference.” That is, the child must be able to articulate reasons for their choice of parental home that indicate they understand the importance of their decision. This usually means the child is a teenager.

What is an “intelligent preference” is open to a judge’s interpretation. But clearly the choice cannot be based on one parent being laxer about school work, bedtimes, curfews, grooming or nutrition. Since the best interests of the child are the ultimate determiner, such leniency might be deemed harmful. However, an intelligent preference could be that one parental home is closer to the teenager’s school or friends or that it provides better individual privacy and is more conducive to study.

Still another basis for finding an intelligent preference could be the teenager’s objection to one parent’s lifestyle. If the parent doesn’t keep a clean house or perhaps has a steady or frequent romantic partner that the teenager disapproves of, these conditions could be viewed as negatively affecting his or her well-being. The court will also want to make sure that the child’s preference is not driven by manipulation or coercion from either parent.

Very often, a child’s preference is expressed as a part of a request for a change in custody and/or parenting time as the child grows older. A judge hearing such a request must conduct a thorough and comprehensive evaluation. The court has the discretion to weigh the child's preference alongside other factors and make a decision that aligns with the child’s overall well-being.

Clark & Schloss Family Law, P.C. helps families in Scottsdale, North Phoenix and throughout Maricopa County with Arizona child custody and parenting time issues. Call us at 602-789-3497 or contact us online to set up your consultation.