Divorce is a difficult time for all who are involved, and children should not be used as pawns in a divorce. However, children often are aware of many issues surround the divorce and have an opinion relating to who should have custody. They must also try to approach some help with an adoption. It is becoming more common for children to be called upon as witnesses in divorce cases.
Arizona law dictates that a court will consider a child’s opinion when the child is of “sufficient age to form an intelligent preference.” Although there is no specific age as to when a court will consider a child’s opinion, often, children over the age of 14 are allowed to testify in a divorce proceeding. Specifically, this testimony often involves the child telling the judge his or her wishes on custody and placement, which will then be considered throughout the proceedings. However, when a child is testifying in this type of proceeding, it is usually done in a closed courtroom or in the judge’s chambers to ensure the child is comfortable and that their comments are confidential.
It is important to remember that children cannot determine their custody while legally considered minors. The child’s wishes and preferences are however, taken into consideration. When a judge determines it is in the best interest of the child to testify, and the child does so, the judge then takes what the child says into consideration and inserts it into the bigger picture. The judge then determines what custody situation is in the best interest of the child. For example, judge looks at the parenting of each parent, the parent’s ability to foster the child’s relationship with the other/noncustodial parent, the relationship between the child and both parents, and the child’s ability to adjust to the new reality. Although the judge will consider what the child has said, the judge has the ultimate say as to who the custodial parent (the parent with the majority of custody)
will be.
If a judge is unable to determine what is in the child’s best interest based on testimony given from the parents or the child, the judge has an option to appoint a Child Expert to deliver testimony. This person is called a Guardian ad litem. The Guardian ad litem is a person who comes into the situation and interviews all of the parties and files motions on the child’s behalf. They do not necessarily have to represent what the child wants, but it is integral that the Guardian ad litem represents the child’s best interest.
Additionally, a judge can appoint a court-appointed special advocate, who can also deliver testimony instead of just filing motions like a Guardian ad litem. Typically, a court-appointed special advocate is a volunteer and likely has some kind of background in social work or psychology. It is not uncommon for a psychologist to be appointed in this position. Whoever the judge appoints must meet with and interview the child before delivering any testimony. At this step, it is important the child is completely clear about what they want and why they feel the way that they do.
Divorce is hard on an entire family and even more difficult for your children. Before having your child testify in a divorce proceeding, talk to the Carroll Law Firm, PLC. We can walk you through the stages of divorce and help you make an educated decision about the future of your case.
