Let’s talk about how much weight the child’s wishes have in a custody case. What if your child wants to live with you? I have many people who come into my office and tell me that their child is telling them that they want to live with me full-time or they want to spend more time with me than they do with their mom or dad.
They reason that that should be the end of the story because my kid wants to live with me. I wish that the answer were that easy but it's not. In my Best Interest Checklist one of those factors is the interests or wishes of the child. A judge is going to consider the wishes of a child if that child is old enough to articulate his or her wishes. How old does a child have to be before a judge is going to start considering the child's wishes? It depends on the law, the judge, and your child.
There are some children who are more mature at 8 years old than other 10 years old. So really it depends on when your child can articulate his or her wishes. However, I've come across many judges who say children, for example under the age of 8 years old, are not old enough to articulate their wishes or to reason so I'm not going to consider it. I'm not going tohave them interviewed because it's just too young. Yet I have had judges who've had children as young as four years old interviewed to determine what their wishes are.
I'm not aware of any place of the other than criminal court where a child has been allowed to be placed on the stand and asked in front of both parents what his or her wishes are. In my opinion that's just unhealthy, toxic and puts the child in the position of having to choose between parents.
The way that determining a child's wishes is done in Arizona is usually a court appoints a mental health professional to interview the child. This mental health professional spends some time with the child, gets to know the child, and tries to establish a rapport with the child. The mental health professional doesn't just come right out and say where do you want to live? Do you want to live with Mom or Dad? They try get to the heart of it indirectly so that the child doesn't feel pressured. There are different ways that a child's wishes can come to be known. That is just one way. Another way is an interview with the minor child. This interview can be done in the context of a custody evaluation or sometimes in my cases, I just file a motion for interview of minor child.
Sometimes in my cases, a court appoints what's called a court-appointed advisor to investigate certain aspects of the case. That court-appointed advisor interviews the child as part of his duties. There are different ways you can get that interview done. I have heard there are other counties in Arizona where judges actually interviewed the children personally. I know that in other states this actually happens. There are judges out there who do it and hopefully they've had some training on how to do this without making the children feel pressured, uncomfortable, stressed out or tense. There are some situations where I've had children who have written letters directly to the judge. It's not my recommendation that a parent direct their child to write a letter to a judge.
I had one client who did that and it wasn't by my advice, but she asked the child to write a letter and she insisted that we submitted at court. It infuriated the judge that that parent would get the child involved in this way. That's a different situation however though if you know a child spontaneously write something and you come across it and it indicates the child's wish to live with you.
In conclusion, one thing that you should know about child's wishes is that just because a child wants to live with you or the other parent doesn't mean that's what the court is going to do. The court is going to look at all of the best interest factors in making a decision about what's best for the kids.