Does a Child Have a Say in an AZ Divorce?

A divorce is an already intimidating process that can become even more daunting when children are involved. Because the separation of parents includes a variety of complicated decisions that can affect the child, from dividing assets to determining a child’s custody, it’s crucial to take the child’s voice into consideration through all of it. A child’s physical and emotional health needs to be one of the top priorities in any divorce involving a custody battle. This leaves many parents wondering if there is a legal age their child can make a custody decision here in Arizona.

At What Age Can a Child Make a Custody Decision in Arizona?

In the state of Arizona, there is no specific age where a minor child can legally make their own decisions regarding their custody. This is because Arizona law tries to keep children shielded from the disputes of their parents, which is why they cannot testify in divorce proceedings either. That said, Arizona’s Judicial Branch does consider many factors regarding the child and their best interest into consideration when making custody decisions.

For example, when a child reaches a “sufficient age to form an intelligent preference,” they can make their custodial preference known to the courts. This allows them to have their wishes heard as part of the larger process of the court examining all available details and determining what is in their best interest. Otherwise, a child is not able to make independent decisions in regard to their custody or where they stay until they turn 18. Then they are seen as a legal adult and can choose where to stay for themselves regardless of any previous custody orders.

What Arizona Law Takes Into Consideration When Deciding Custody

While Arizona law looks at a multitude of factors involving the child and their well-being, these are a few of the most basic aspects that need to be examined:

1. The Wishes of the Parents

While the child’s needs and desires are vitally important, it’s also important for the court to listen to the wishes of the parents. While some children may think they know what is best for them, this might not always be the case, especially when they’re too young to analyze situations rationally.[fn]D’Onofrio, B., & Emery, R. (2019). Parental divorce or separation and children’s mental health. World psychiatry : official journal of the World Psychiatric Association (WPA), 18(1), 100–101. https://doi.org/10.1002/wps.20590[/fn] This is why Arizona courts take the precaution of hearing both parents out before determining custody of the children involved in a divorce.

2. The Wishes of the Children Involved

Although a minor cannot make their own custody decisions, hearing out the child’s wishes is an essential part of the process. A divorce can take an immense emotional toll on children, and their wishes should always be taken into consideration.[fn]Clark, B., & Canadian Paediatric Society, Mental Health and Developmental Disabilities Committee (2013). Supporting the mental health of children and youth of separating parents. Paediatrics & child health, 18(7), 373–377. [/fn] When a court is determining custody of a child, their physical and mental health are at the forefront of the conversation, along with the wishes of both the parents and the child. And while a child’s wishes can’t always be granted, it’s important to hear what they have to say in a situation they don’t have much control over.

3. The Relationship Between Child and Parent/Family

The relationship between a child and their parents plays a significant role in determining custody. Placing a child with a parent they can’t connect with can affect their social and emotional growth greatly. The past, present, and potential future outcomes of the child’s relationship with each parent will be looked at in order to ensure the child is safe, comfortable, and adequately supported. Relationships between each child and their siblings (if there are any) are also taken into consideration, as splitting apart children can be an extremely difficult and emotionally taxing process for everyone involved. Whenever possible, Arizona courts do their best to keep siblings together.

4. The Mental and Physical Health of Everyone Involved

One of the most common phrases you will hear throughout a divorce involving children is “in the child’s best interest.[fn](2022). Interviewing Children. CASA of Arizona. https://www.azcourts.gov/casa/Training/Training-Courses/Interviewing-Children[/fn] This is because the child’s best interest, meaning whatever is best for the child, is the single most important aspect of determining custody. The mental, physical, and emotional health of everyone involved is a critical aspect, but this is especially true of children who had no say in ending their parents’ marriage.[fn]Banach, M. (1998). The Best Interests of the Child: Decision-Making Factors. Families in Society, 79(3), 331–340. https://doi.org/10.1606/1044-3894.992[/fn] For example, if a child voices that they want to stay with a parent that has been demonstrated to be abusive, the courts will most likely not agree with those wishes and place the child with the other parent in the best interests of the child and their health.

5. The Child’s Ability to Adjust

A divorce is a complicated process for any child to come to terms with. Because of this, the child’s ability to adjust to changes such as new schools or new neighborhoods is also analyzed when determining custody. The age of a child can also affect their ability to adjust. For example, a four-year-old might have a much easier time moving schools and making new friends than a 13-year-old. If possible, the courts try to limit additional massive changes in the child’s life during this already-difficult transition.

6. Whether Child Abuse or Domestic Violence Were Present

Despite a child or parent’s preference, if there is evidence of domestic violence or child abuse, this will play a major role in the court’s determination of custody of your child. Because your child’s best interest is in mind, an abusive parent that has sufficient evidence against them will not receive custody of the child. Arizona courts will not allow a child to be placed in the care of a person who has already demonstrated they are unable to care for a minor properly. With that in mind, another aspect the courts will consider is whether there have been false claims made against a spouse.

7. Whether Parent Coercion Was Used

When judges look at a child custody case, they want to make sure that every layer of it is inspected. This includes examining anything like coercion or duress a parent may have used when trying to come to a custody agreement. Some ex-spouses will try to bribe or coerce the other with money or additional assets if they agree to a certain child custody arrangement. If judges find evidence of coercion or extralegal deal-making, the parent responsible will most likely not be able to gain custody of their child.

8. Whether a Parent Purposely Delayed/Negatively Affected a Case

Unfortunately, it is not uncommon for one spouse that is unhappy with the way proceedings are going to attempt to delay or consistently combat a case. If there is sufficient evidence that one parent was purposely delaying a case, trying to artificially increase court costs for the other party, or illegally attempting to sway the court in any way, this will also affect custody decisions.

How to Make a Child’s Voice Heard in Divorce

While a child may not be able to make a decision in regard to their custody, there are other ways to make sure that your child’s voice is heard throughout the divorce process.

1. Child Interview

If you want your child’s wishes to be more prominent, you can request a child interview from the courts.[fn](2022). Interviewing Children. CASA of Arizona. https://www.azcourts.gov/casa/Training/Training-Courses/Interviewing-Children[/fn] When doing so, you’ll have to provide a reason as to why the interview should take place. This may be because your child is not comfortable around a certain family member or when there is evidence of neglect or abuse.

Regardless of the reasoning, the other spouse will then have an opportunity to respond to the child’s interview request. If the request for the interview is approved by both the ex-spouse and court, a judge will then begin the process by setting a date, time, and place where the interview will occur. After the child does the interview, the information that was received will be submitted to the courts and taken into consideration for the final custody decision.

2. Child Preference

Though a child cannot make an independent decision about their custody or testify directly in court during litigation, Arizona law does allow for what’s known as “child preference.” As mentioned previously, the law states that a child’s preference can be taken into consideration when they are at a “sufficient age to form an intelligent preference.” Of course, this is more subjective because of the age and thought processes of the child. A “sufficient age” might be anywhere from 12-15+, depending on if the courts see them as able to develop and express an intelligent preference. For example, the child can’t make their decision based on wanting to stay with a parent because there are more toys at their house. If they provide valid reasoning, however, the court will take their wishes into consideration.

3. Using a Guardian Ad Litem

A guardian ad litem (GAL) is a person that is assigned by the courts to represent the rights of a child, minor, or person that is otherwise unable to represent themselves in specific court cases. A GAL is often used in cases with consistent family law disputes and protects the child and their interests. A GAL is a special legal guardian who advocates for a child’s needs and best interests.

Making Custody Decisions in Arizona

Child custody decisions can be made in two ways:

1. Agreement Between Parties

Determining child custody through a mutual agreement is a much simpler process than going through the litigation process in court. Mutual agreement between ex-partners is also the most common method of coming to a determination on custody, which defies the media stereotype of the venomous custody battle. Most parents simply want what is best for their child and will be honest about what situation is in the child’s best interests. At certain developmental stages, a child may be predisposed to being with one parent over the other, which most people can understand.

The child is the most important part of this decision, meaning that even if they are too young to create an “intelligent preference,” their parents should still take their wishes into consideration. Many children are vocal about the parent they would prefer to be with, whether that’s because they are more comfortable with them or they have always been tied to them. It is important to recognize both your child’s needs and their wishes (and the distinction between the two) when making the ultimate decision on custody.

2. Court Determination

In situations where parents are unable to come to a mutual decision involving the custody of their child, the case will be handed over to the court. A judge does not work to help the two parties come to an agreement but rather makes the decision based on the child’s best interest and the factors that come along with that.[fn]Muñoz Soro, J. F., & Serrano-Cinca, C. (2021). A model for predicting court decisions on child custody. PloS one, 16(10), e0258993. https://doi.org/10.1371/journal.pone.0258993[/fn] If the two parties want, they can seek mediation to try and come to a mutual agreement. Regardless of whether that process fails or succeeds, the court is responsible for the final determination and issuing the subsequent legal order.

A judge has the opportunity to interview a child in a divorce, but it is not required to do so. The parents involved are also allowed to petition to have their child interviewed if they want to make sure their child’s voice is heard. If an interview ends up being approved, the judge will hear out what the child has to say on the matter. The maturity of the child and their ability to adequately describe their needs and wishes will determine how heavily their opinion affects the overall decision.

*Editor’s Note: This post was originally written September, 2021 and has been updated February, 2022.

Ryan Reppucci

Ryan Reppucci, Founder/Director of Legal Operations of The Valley Law Group, is recognized as one of Phoenix’s leading family law attorneys. After graduating from Arizona State with the highest honors and inclusion in America’s most prestigious student honor societies, Ryan attended the University of Detroit Mercy School of Law. His career as a law student was decorated with numerous awards, including the University of Detroit Mercy School of Law Book Award, nomination for membership in Who’s Who Among Students in American Colleges and Universities, as well as Moot Court.

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