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In a divorce, will my child be asked to decide who to live with?

It depends on the circumstances. For one thing, if you negotiate or mediate your divorce, you will come up with your own parenting plan, which includes assigning legal decision-making authority and parenting time. If you can resolve your divorce by agreement, out of court, there is no need to worry about having your child testify about their wishes.

For another, Arizona courts will only consider the child's opinions if they are of "suitable age and maturity." Moreover, the child's opinion must be an "intelligent preference."

Whether your child is of suitable age and maturity and whether their opinion represents an intelligent preference are questions that depend on the child. If they are willing to consider your child's preference, the judge may ask your child questions meant to elicit information about the child's maturity level. For example, the judge might ask whether your child understands what the purpose of the court proceeding is and whether they understand how important it is to tell the truth.

Then, the court would consider whether your child's stated preference is an "intelligent" one. For example, it might be appropriate for the child to prefer to stay in the family home. On the other hand, if their preference is based on something whimsical or changeable, the court might not consider the preference to be an intelligent one.

Finally, the court will want to know whether one parent has pressured or coerced the child into choosing one living situation over another. The judge may ask questions intended to determine whether the child has been coached.

It's a hard thing to be asked to choose what parent to live with

Many children feel torn and anxious when asked to choose what parent they should primarily live with. They often feel this is like choosing which parent they love more. There may be no good answer.

To help children through this difficult question, judges may ask the child to speak to them in chambers. This might be done on or off the record. Or, the judge could appoint someone like a child custody evaluator or guardian ad litem to ask the child about their preferences.

In general, the courts of Arizona will not require a child to testify about their preferences in open court. If the child is reluctant to say, it may be in their best interest to make the decision without their input.

Ultimately, the child's best interest is the standard

When determining legal decision-making authority and parenting plans, Arizona courts always look to the child's best interest as the determining factor. This is usually established by weighing all factors that are relevant to the child's best interest, such as:

  • The child's past, present and potential future relationship with each parent
  • The interaction and interrelationship between the child with their parents, their siblings and other significant people in their lives
  • The child's adjustment to home, community and school
  • The mental and physical health of everyone involved
  • Which parent is considered more likely to allow frequent, meaningful and continuing contact with the other parent
  • Whether either parent intentionally misled the court in order to cause delay, to increase the cost of litigation, or to get their preferred parenting order
  • Whether there has been domestic violence or child abuse
  • Whether either parent used coercion or duress in seeking their preferred parenting order
  • Whether either parent has been convicted of false reporting of child abuse or neglect
  • Other factors the court may deem relevant

If you are going through a divorce and worry about your child testifying, discuss your concerns with your divorce attorney right away.

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Law Office of Hector A. Montoya, P.L.L.C.

3507 North Campbell Avenue
Suite 111
Tucson, AZ 85719

Phone: 520-719-1767
Phone: 520-743-1797
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