When the Minor Child Weighs in on Custody Decisions

In some states, the minor child may decide which parent he or she chooses to live with. That is not so in Arizona — the child does not have the right to decide which parent shall have custody. At any time, the court may consider the child’s wishes though. The court has discretion to interview the child, but this is not a common practice in our family courts. The judge may also allow testimony from the parents on what they perceive their child’s wishes to be. More often than not, the judge relies on the opinion of a mental health professional for guidance on what is and is not in the best interests of the child.

Representing the Child: Should the child decide custody?

A guardian ad litem (GAL) could be appointed to represent the child, which is more likely to occur in a highly contested family law case. The GAL is not there to voice the child’s custody wishes, but to protect the child’s rights and interests in a custody dispute between parents. A child custody evaluator interviews the child and reports on what is in the child’s best interests, but the evaluator is not an advocate for what the child wants. So how does the court make custody decisions?

Factors the Court Considers in Determining Custody.

Under A.R.S. § 25-403, the court applies specific factors to the facts of the case to determine custody in accordance with the child’s best interests. Those factors include the following:

1. The wishes of the child’s parent or parents as to custody.

2. The wishes of the child as to the custodian.

3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

4. The child’s adjustment to home, school and community.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

7. Whether one parent, both parents or neither parent has provided primary care of the child.

8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

9. Whether a parent has complied with chapter 3, article 5 of this title.

10. Whether either parent was convicted of an act of false reporting of child abuse or neglect.

Another statute, A.R.S. § 25-405, authorizes a judge’s discretionary in chambers interview of a minor child to establish (and record) the child’s wishes on “custody and parenting time.” The record preserves the interview for appeal. In addition, the court’s authority to interview a minor child in a custody setting comes under ARFLP Rule 12:

“[T]he court may, in its discretion, conduct an in camera interview with a minor child who is the subject of a custody or parenting time dispute, to ascertain the child’s wishes as to the child’s custodian and as to parenting time. The interview may be conducted at any stage of the proceeding and shall be recorded by a court reporter or any electronic medium that is retrievable in perceivable form. The record of the interview may be sealed, in whole or in part, based upon good cause and after considering the best interests of the child. The parties may stipulate that the record of the interview shall not be provided to the parties or that the interview may be conducted off the record.”

Custody Agreements Between Parents.

An agreement between the parents as to child custody is the most common method of determining custody arrangements. A child may exhibit a need to be more bonded to one parent or place at any particular developmental stage in the child’s life. Most parents understand this aspect of child development and share a common perception of their child’s needs at any given time.

Even children too young to verbalize a custody preference may, by conduct, display a greater affinity for one parent over the other, or a preference for one living situation over another. Children of all ages are quite adept at communicating likes and dislikes to parents, well before they use speech to convey more complex messages. The ability of parents to recognize their child’s basic needs for the best living arrangement continues throughout the child’s minority. Parents need to be flexible and accommodate change as the child’s needs evolve.

More and more often, parents seek to resolve custody issues caused by changed circumstances with limited court intervention and litigation — through alternative dispute resolution, more particularly with mediation. A professional mediator attempts to establish common ground between the parents on just how much weight should be given to the child’s custody wishes.

Custody Determinations By the Court.

In court, the judge is not required to interview the child or give substance to the child’s desires. Therefore, like the parents in mediation, the court has discretion to give the child’s wishes (if they are even known to the judge) as much or as little weight as it chooses. Therein lies the primary difference between a court’s decision and a mediator’s resolution. Judges do not facilitate agreements between parties, instead the court is focused on what is in the best interests of the child, a legal standard. The mediator, as an experienced facilitator, is focused on bringing the parties to agreement over the best custodial arrangement for the child (still in the child’s best interests). The court’s determination of what is in the child’s best interests can be diametrically opposed to the child’s view, and may also be significantly different from the parents’ views.

In the event the judge does interview the child, then the child’s preference may carry greater weight if he or she appears to be mature enough to fully understand the circumstances. Many judges and child psychologists, however, strictly adhere to the premise that a child should never be asked to choose between the parents. If the court suspects that the child’s wishes are the direct result of pressure from a parent to alienate the other parent, then the judge is likely to relegate the child’s preferences to little weight or no weight in the custody decision.

Not surprisingly, family law judges are more willing to consider children’s custodial preferences when they are older and more mature. Courts understand that children between the ages of 13 and 17 may clearly signal their displeasure over the living arrangements by “acting out” and, sometimes, running away from the custodial parent into the arms of the noncustodial parent.

The court’s legal conclusions about where the child should live are guided by the best interests standard. If the court exercises its discretion to interview the child, then the minor’s preferences will carry greater weight as the child ages and matures, so long as the child’s preferences appear to be well-founded and genuine.