For most couples going through a divorce or paternity case, the most important issue they face is determining a parenting time (formerly known as “custody”) schedule for their child or children. Who has the child when? Some parents want the child to be able to decide where they want to live. If the parents are unable to agree on a parenting plan, then that decision is ultimately decided by the judge.
In Arizona, parenting time is governed by A.R.S. §25-403(A). That law reads as follows:
A. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:
1. The past, present and potential future relationship between the parent and the child.
2. 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.
3. The child’s adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent, meaningful and 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 intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
10. Whether a parent has complied with chapter 3, article 5 of this title.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
Factor number four states, “If the child is of suitable age and maturity…”. There is no magical age when a child gets to decide. The “wishes of the child” is just one of the factors that the court will consider. A child’s voice can be heard, but it is not up to the child. The reasons are fairly simple. Children (as well as some adults) do not always make the best decisions. Children are often easily influenced and parents going through a divorce might try and influence a child’s decision by offering bribes, e.g. a new puppy, a car, no curfew, etc.
In conclusion, if parents are unable to agree on a parenting time schedule it is not up to the child to decide. Yes, the court can consider the child’s wishes, but that is not the end of the inquiry and the court will consider other factors as well.
Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona. For help with divorce, parenting time, paternity, child support or any other legal matter, call Daniel J. Siegel, P.C. at 602-274-1099.
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