Do Children Have The Right To Choose Which Parent They Live With In A Divorce?

Since about half of marriages end in divorce, it’s no surprise that many parents get divorced before their children reach adulthood. Some parents immediately agree that they should split custody of the children 50/50. But others have their reasons to fight for primary custody of their children. One parent’s relationship with a child could be undeniably stronger than the other parent’s. The child may even be vocal about that fact. But that doesn’t mean that the favored parent is guaranteed primary custody of the child. There are a variety of factors that will determine child custody in Arizona. Read on to learn more about them, and if you need additional information, call our firm for your free consultation at 480-448-9800.

Family law lawyer reading child custody in Arizona

Arizona Child Custody

There are two types of custody in Arizona. If a child wants to pick which parent to live with, physical custody is in question. Physical custody is also referred to as “parenting time” in Arizona. As the name suggests, it refers to the amount of time the child physically spends with each parent. This is separate from legal custody, also called legal decision-making. This is a parent’s right to make decisions like where the child should go to school, attend church, and even which medical treatments they receive. A parent can still have legal custody of a child while the child is in the other parent’s physical custody. When one parent is the only parent awarded either type of custody, it is referred to as sole custody. If the parents share custody, it is referred to as joint custody.

What Are The Factors Used To Determine Child Custody In Arizona?

The factors the court will analyze while determining child custody in Arizona are set forth by A.R.S. § 25-403. The court can always consider outside factors based on individual circumstances. The factors codified by the Arizona Revised Statutes include:

  1. The past, present, and potential future relationship between the parent and child
  2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest
  3. The child’s adjustment to home, school, and community
  4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time
  5. The mental and physical health of all individuals involved
  6. Which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent? This factor does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
  7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation, or to persuade the court to give a legal decision-making or a parenting time preference to that parent
  8. Whether there has been domestic violence or child abuse pursuant to A.R.S. § 25-403.03
  9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making and parenting time
  10. Whether a parent has complied with chapter 3, article 5
  11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02

So Can A Child Pick A Parent?

Factor 4 lists the child’s preference as an issue that impacts child custody in Arizona. But it also specifies that the child must be at a certain age and maturity level. In the state of Arizona, that is usually around 12 years old. However, a child’s personal preference is only one of several factors considered for child custody and is hardly determinative. Family law judges often rule against the child’s wishes and place them with the other parent in their best interest. It could be dangerous to place the child with their preferred parent if they prefer them for being “the fun one.” But if both parents appear to be competent and comply with family law, and the child has a preference for one over the other, the judge might take this into consideration. Because Arizona family law emphasizes meaningful relationships with both parents whenever possible, a parent is unlikely to be denied parenting time altogether just because a child prefers the other parent.

While a child’s choice can be a contributing factor to a custody determination once they are around a certain age, we sometimes caution against this method of obtaining custody. It can be painful for a child to choose between their parents, and shouldn’t be a preference that they are coached into voicing. It is one thing for a pre-teen or teenage child to constantly complain about time with one parent and not want them to have custody, but another for a parent in the midst of the divorce to constantly ask a young child with which parent they’d rather live. Children shouldn’t have to experience the stress of legal matters, and should therefore be kept out of divorce and family law matters to whatever extent possible. In fact, pressuring a child to pick one parent over the other could be construed as “parental alienation.” This is manipulation by one parent to turn the child against the other and can be used as a factor against the manipulating parent in future custody battles. (See Factor 6)

Even if the judge does award a parent more physical custody due to a child’s preference, that doesn’t automatically negate legal custody. Legal decision-making is the other part of custody in Arizona. It is a parent’s ability and right to make decisions regarding their child’s education, medical treatment, and more. A parent can have legal custody while the child is in the physical custody of the other parent. While a child can also give input into who should have legal custody over them, a judge is more likely to take a child’s opinion into consideration for physical custody than legal custody.

What About After Age 18?

It is becoming more and more common for adult children to put off leaving the nest until later in life. But besides financial support and the pressure to please parents, a child is free to move wherever they’d like once they turn 18 years old. This may seem obvious, but we’ve seen exes fight over it before. This occurs most often when one parent has primary physical custody of a child, and the child wishes to live with the other parent after they turn 18. Once a child reaches adulthood, they can pick where they want to live, whether that be with a parent or otherwise.

Your Arizona Law Team For Custody Disputes & More

Time with your children is precious and limited and could be limited even further by Arizona family court orders. At AZ Family Law Lawyers, our family law team can help you resolve custody disputes with outcomes that are positive for everyone in your family. We offer competitive rates and payment plans that will work with your budget. To learn more, contact us for your free consultation at 480-448-9800.


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