Earlier this month, former UFC light heavyweight champ and Mixed Martial Artist fighter Chuck Liddell — “The Iceman” – filed for full custody of his 12-year-old son, Cade. (Liddell also has a daughter, Trista, who’s mother is MMA fighter Casey Noland). Apparently, the lad made it clear to his father that he didn’t want to live in Colorado with his mother, Lori Geyer, any longer. There are allegations that the child was depressed about having to return to his mother’s after parenting time with Dad, had been suffering with a toothache for months, and was required to remove snow and do other physical work under his mother’s care.
Although this celebrity child custody case will be followed closely by fans, we’d like to discuss the underlying custody question that it raises. When does the child get to decide which parent to live with?
When the Child Weighs-In on Custody.
In some states, a minor child may decide which parent he or she wants to live with. But that is not the law in Arizona — the child does not have a right to decide which parent shall have custody. However, the court may consider the child’s wishes at any time and has discretion to interview the child. Realistically, judicial interviews of children is not a common practice in our family courts. The judge may allow testimony from the parents on what they perceive their child’s wishes to be. More often than not, though, the judge will rely on the opinion of a mental health professional for guidance on what is and is not in the best interests of the child.
Factors in Determining Custody.
Under A.R.S. § 25-403, the court applies specific factors to each case in determining which parent gets custody when in the child’s best interests:
— What are the parents’ wishes?
— What are the child’s wishes?
— How does the child interact with the parents, siblings, and significant others who may affect the child’s best interests?
— How will the child adjust to home, school, and community life?
— What is the mental and physical health of everyone involved?
— Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent?
— Has one parent been the primary caregiver? Both parents?
— Has a parent used coercion or duress to get a favorable custody agreement?
— Has there been domestic violence?
— Has a parent been convicted of falsely reporting child neglect or abuse?
A judge’s discretionary interview of a minor to learn the child’s custody wishes is authorized under A.R.S. § 25-405. Additionally, the court’s interview authority comes under Arizona Rules of Family Law Procedure, Rule 12:
[T]he court may, in its discretion, conduct an in camera interview with a minor child who is the subject of a custody or parenting time dispute, to ascertain the child’s wishes as to the child’s custodian and as to parenting time. The interview may be conducted at any stage of the proceeding and shall be recorded… The record of the interview may be sealed, in whole or in part, based upon good cause and after considering the best interests of the child. The parties may stipulate that the record of the interview shall not be provided to the parties or that the interview may be conducted off the record.
Listening to the Child and Parental Alienation.
If the judge does interview the child, then the child’s preference may carry greater weight if he or she appears to be mature enough to fully understand the circumstances and consequences. Many judges and child psychologists, however, believe that a child should never be asked to choose between the parents. If the court suspects that the child’s wishes are the direct result of pressure from a parent to alienate the other parent, then the judge is likely to relegate the child’s choice to little weight in the custody decision.
Family law judges are more willing to consider children’s custodial preferences when the children are older and more mature. Courts understand that children between the ages of 14 and 16 may clearly signal their displeasure over the living arrangements by “acting out” and, sometimes, running to the noncustodial parent and away from the custodial parent.
The court’s legal conclusions about where the child should live are guided by the best interests standard. And if the court does interview the child, then the minor’s preferences will carry greater weight as the child ages and matures, assuming those preferences appear to be well-founded and genuine.
While much of our client service involves resolving child custody and visitation problems between divorcing spouses, at the Law Offices of Scott David Stewart we also represent parents who have been divorced for years. Our family law attorneys are experienced with custody modifications and with the enforcement of parental rights after divorce, including move-aways where the other parent is seeking to relocate to a distant community or to another state. Contact our offices today and find out how we can help you with your child custody matter.
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