There is a common misconception that at age 12 or age 14, children in child custody cases get to decide which parent they will live with. In fact, children don’t get the ultimate say until they are no longer legally children–when they reach age 18.
Until children reach age 18, judges have the authority under Arizona law to decide child custody (now “legal decision-making”) and parenting time issues. Judges don’t relish this authority. They prefer that the parents themselves decide what is best for their children and simply submit an agreed-upon parenting plan to the court for approval.
When parents do not agree, however, family court judges are charged with deciding child custody and parenting time in accordance with the children’s best interests. Judges are specifically required by law to “consider all factors that are relevant to the child’s physical and emotional well-being”, including but not limited to all eleven factors delineated in A.R.S. Section 25-403.A.1-11.
One of the eleven factors judges must consider under A.R.S. Section 25-403.A relates to the child’s wishes. A.R.S. Section 25-403.A.4 states that “if the child is of suitable age and maturity,
Sometimes what a child wants is not in her best interests. Although a child naturally may gravitate to the home of the parent who doesn’t make the child do her homework, who doesn’t impose a curfew, and who allows the child to hole up in her room watching TV, those things are not best for the child. Rather, it is in the child’s best interests to succeed in school, to learn to obey rules, to work hard and to adhere to reasonable boundaries. If the other parent can offer more structure while still loving and nurturing the child, it may be best for the child to spend more time in the home of the parent where the child would really prefer not to be. Judges must balance all relevant factors in determining what parenting arrangement is best for the child overall.
Still, as children get older, judges do in fact give more and more weight to their wishes. This is probably based on the judges’ practical concerns. A seventeen year-old who has a driver’s license and a car is difficult to control with a court order. The older child will usually just go where he wants to be. Judges are well aware of this and are not inclined to force an older child to be with a parent he has stated he does not want to live with.
In the end, it’s the parents–not judges or even the children–who should decide together what is best for their children. Parents should then be united in presenting those decisions to their children. Parents do a disservice to their children and themselves when they coddle and cater to their children in an effort to be the favorite and entice the children to live with them over the other parent. Children learn quickly when parents are willing to allow themselves to be manipulated, and kids will manipulate.
Kids don’t call the shots in custody cases, except when their parents let them.
Copyright © 2013 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.