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How the Court Considers a Child’s Wishes – Part 1

It is a very common, and persistent myth that there exists an age at which a minor child can make their own decision as to which parent they would like to live with. This has never been the case. So long as a person remains under the age of eighteen, their wishes may serve to instruct the court or their parents about whom they would like to reside with, or other decisions about their care, but they are not binding factors. The court and the child’s parents are free to ignore them outright should those wishes be not in their best interest, or the child lacks sufficient maturity to make their wishes known under existing state statutes.

One of those state statutes is A.R.S. § 25-403(A)(4), which states that the court must find: “4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.”

The court is required to make its findings with consideration for all relevant factors. The child’s wishes only would become relevant to the court if the court itself finds that the child is of sufficient age and maturity to make those decisions. Even in that case, while the court may be required to consider the wishes of the child, the weight the court gives those wishes when determining the totality of the circumstances may vary. If the child is not of sufficient age or maturity, the court may consider the wishes of the child, but it is by no means required to do so.

Multiple sources may be used by the court to determine the maturity of the child, and what weight, if any, to give to their wishes in the decision-making process. This evidence may come from the parties to the divorce, other witnesses such as friends or family members, Department of Child Services employees, law enforcement, or schoolteachers. Medical records may also play a role in this determination, should the child be diagnosed with a neurodevelopmental or learning disability. Many factors go into determining the weight the court gives each piece of evidence when determining the sufficient maturity level of the child in question.

Importantly, the testimony of the child plays no role in this determination. Per Rule 11, Arizona Rules of Family Law Procedure, “A minor child affected by the proceeding may not attend any proceeding involving the child or the child’s parents without the court’s prior permission.” They may not attend court and should not indirectly be involved in the case in any way.

Are you facing a child custody dispute? We here at Simon Law Group are experts in the field of Family Law in Arizona. Contact us today for a free consultation and find out how we can help.

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