When Can My Child Decide Which Parent to Live With After the Divorce?

In Arizona, a child can decide which parent to live with after their parent’s divorce only when the child reaches his or her 18th birthday. At this age, when the child is no longer a minor, the Court loses jurisdiction over the child for purposes of determining legal decision-making (custody) and parenting time. Until this age, however, the minor child’s wishes as to which parent to live with and any parenting schedule to be followed is just one of several factors that the Court is required to consider in deciding custody and parenting time. (See A.R.S. §25-403 for a complete list of the factors the Court is to consider in deciding a contested legal decision-making or parenting time dispute). In other words, a minor child is never empowered to decide which parent she prefers to live with or the parenting schedule to follow. At best, a minor child’s wishes may be one factor considered by the Court in deciding these issues.

The relevant statute makes clear that if the “child is of suitable age and maturity” the Court is at least required to consider the child’s wishes. However, there is no magic age as to when a child is considered to be of “suitable age and maturity” and each judge may have a differing opinion on this issue. Further, even if the Court determines that a child is of suitable age and maturity such that her wishes should be considered, the weight that the Court will give to that child’s stated preferences also varies. Presumably, a Court will place more weight on the wishes communicated by a 15-year-old than a 9-year-old. But in evaluating the child’s stated wishes the Court must consider the child’s motives. Does the 15-year-old want to live in Mother’s home because Mother has promised her a car? Does the 9-year-old want to live in Father’s home because she doesn’t like that Mother makes her do chores at her house? Knowing the reasons behind the child’s stated preference is therefore important.

While there are several options available to ascertain the wishes of a child of suitable age and maturity, most often the Court will schedule a child interview. While Judges are permitted to conduct an interview of the child, most Judges do not do so. Instead, the Judge will refer the matter to Conciliation Services, a department within the Maricopa County Superior Court, for a service provider to interview the child to find out the child’s wishes and the reasons supporting the same. The report is then provided to the parents and the Judge to consider in determining the disputed custody and parenting time issues.

If you are involved in a custody or parenting time dispute in Arizona and you have a child that tells you that she wants to speak to the Judge to state her wishes, you can let her know that the Court is not required to, and is actually precluded from, entering any decision-making or parenting time schedule based solely on her expressed wishes. You can inform her that, possibly, the Court will authorize an interview by a Court appointed third party and, depending on the child’s age and maturity, may take her wishes into consideration. Know that your minor child is never empowered to make these important decisions until she is actually an adult.

About the Author:

Dana Levy (Member, Phoenix) is a certified family law specialist by the State Bar of Arizona. Her practice is concentrated in family law, including dissolution, post-dissolution, paternity, child custody and child support matters. She is a fellow of the American Academy of Matrimonial Lawyers. Please contact Ms. Levy in our Phoenix office at 602-285-5082 and visit her bio here.