In Arizona family law procedure, the court may consider the wishes of the child in terms of a custody dispute if they meet the criteria for “sufficient age and maturity” under Arizona state law. The determination of what the child’s wishes are, and how to consider them, is made through the consideration of several factors:
Interview with the Children
Per Rule 12, Arizona Rules of Family Law Procedure, the court may order that a child deemed to have sufficient maturity be interviewed for the purposes of determining what their wishes are. This interview may be conducted by an agent of the court, or in some cases by the judge themselves. The interview will be summarized and recorded, and parents may have an opportunity to obtain these recordings should they file the relevant motion. All children will be interviewed at the same time.
Mental Health Records
If the child has been receiving mental health care from an established provider, the testimony of that provider may be a valuable tool in determining the wishes of the child, especially if that care provider has consistently heard the wishes of the child over time. A parent may subpoena the testimony of mental health care providers for this purpose.
Medical Records
Statements made to medical providers about a child’s wishes may be used as evidence of those wishes in a court per Arizona Rules of Evidence, Rule 803 as an exception to the hearsay rule either parent may subpoena the testimony of a medical provider and may file a motion for a video appearance to reduce inconvenience to the witness.
Educational Records
Either parent may subpoena the testimony of a child’s teacher to help ascertain the child’s wishes, should the child have previously made such statements towards an educational provider under the same rules of evidence as a medical provider.
Witness Testimony
Occasionally, witness testimony may be considered when determining the wishes of the child. In general, the exceptions to the hearsay rule in such cases include excited utterance, present sense impression, or then-existing mental, emotional, or physical condition. Whether witness or party testimony is allowed by the court will generally vary depending on the judge appointed to the case. Some judges may also consider the physical and emotional reactions of the child as well as their words through lay witness testimony.
Law Enforcement Testimony
When law enforcement has been involved in a custody dispute, their testimony may be given weight when determining both a child’s best interests as well as their wishes.
DCS Records
DCS records may be subpoenaed, or the court may issue an order for DCS to produce the records when determining the wishes of the child if they have been involved in the custody dispute. The court will consider both DCS records as well as the testimony of the case worker.
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