Friday, August 14, 2015

HOW A CHILD'S VOICE CAN BE HEARD IN A CUSTODY OR PARENTING TIME DISPUTE

I am frequently asked at what age children can decide where they'd like to live, and whether or not they want to spend time with a parent.  The answer to that question is that children under the age of majority are not allowed to make those kinds of choices on their own. Those are decisions for parents -- and when the parents can't agree, a judge will make the decision.  But although children are not given the right to make these crucial choices, their voices can be heard -- and the courts are listening.

In determining parenting time and legal decision-making authority (formerly called "custody"), the courts in Arizona are guided by the law as set out in Arizona Revised Statutes, Section 25-403.  When children get into their teens and closer to their 18th birthday, the courts will increasingly consider their desires regarding parenting time and where they want to live.  But judges must be careful, because although many teens are logical and mature and have good reasons for their point of view, others are immature and unable to make well-reasoned decisions.  For example, some children may simply want to live in the household of the parent who has less rules and supervision; or they might have been unduly influenced by a parent. 

Judges have the right to interview children, but they rarely do so.  It is even more rare for children to be allowed to testify in a Family Court trial or hearing.  However, it is common for a judge to appoint a behavioral health expert to interview the children (and sometimes the parents) and make a report and recommendation to the Court.  There are a number of different ways that this can be done.  For instance, the judge can order the parents to participate in a Parenting Conference, or a Family Assessment; or the judge can order a Custodial Evaluation (either limited or full-scale).  The custodial evaluation process results in an in-depth investigative report and recommendation to the Court, and it may include psychological testing.   The purpose of each of the above-options is to assist the Court in developing the best custody and parenting plan for the children.  In doing the interviews, the experts will also be on the look-out for signs that a parent is coaching the children and/or attempting to alienate them from the other parent.

In high-conflict cases, the Court may also appoint a Parenting Coordinator, or even a separate attorney to represent the children.  The option that the Court ultimately selects will depend on a number of factors, including the level of conflict; the types of issues presented; how complicated those issues are; what kind of evaluation the parents want; and, to some extent, what the parents can afford.  

The Court's goal is to protect the best interests of the children.  Most judges are not mental health or child development experts, and they don't have sufficient time to do an in-depth investigation of their own. Therefore, they utilize professional experts to help them determine the facts of the case, and the needs of the children.  In this way, the children's voices can be heard. 





Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and parenting time issues in Family Court.  The issues in this blog are provided general informational purposes only and should not be relied on as legal advice in your particular case, nor should it be construed as forming an attorney-client relationship.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, you should be aware that: (1) even a slight difference in a factual situation can lead to a vastly different result; and (2) the laws are constantly changing and new laws are continually being enacted.  

Legal advice cannot be given without a full consideration of all relevant information relating to your individual situation.  Therefore, if you have an important legal issue, you should obtain a consultation with a qualified attorney.  To schedule a personal consultation with Mr. Frank, you may contact us by email at gary.frank@azbar.org, or through our web site at www.garyfranklaw.com.