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In Arizona, a child’s preferences are just one of a number of factors that the court must consider when determining legal decision-making and parenting time. Arizona law states that the child must be “of suitable age and maturity,” but it doesn’t specify a particular age (ARS 25-403). In that sense, a child cannot outright refuse visitation with a parent until the child turns 18.
The custodial parent can file a request to modify the custody agreement based on the child’s refusal to visit the non-custodial parent, but the court will ultimately be guided by the child’s best interests, and those interests may not coincide with the child’s expressed wishes.
Factors That May Influence The Court’s Decision
When parents create a custody agreement determining parenting time and legal decision-making, the child’s best interest is always what is most important. Judges in family court are instructed to consider any factors that are relevant to a child’s physical and emotional well-being, though Arizona law specifically lists 11 factors that are of utmost concern. These include:
- The past, present, and potential future relationship between the parent and child.
- The interaction and interrelationship of the child, parent(s), sibling(s), and anyone else in the household who may significantly affect the child’s best interests.
- The child’s actual or potential adjustment to the home, school, and community
- The child’s preferences regarding parenting time and legal decision-making (providing the child is of suitable age and maturity).
- The physical and mental health of the people who are involved.
- Which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent (unless 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)
- Whether one parent intentionally misled the court to increase the cost of litigation, cause an unnecessary delay, or persuade the court to give a parenting time or legal decision-making preference to themselves.
- Whether there has been child abuse or domestic violence pursuant to ARS 25-403.03.
- The nature and extent of distress or coercion used by a parent in obtaining an agreement regarding parenting time or legal decision-making.
- Whether a parent has complied with ARS 25-351 – 355.
- Whether either parent has been convicted of an act of false reporting of child abuse or neglect under ARS 13-2907.02.
What Happens When a Child Refuses Visitation?
A court order regarding parenting time and/or legal decision-making is a legally binding agreement that must be upheld by both parents. A parent who regularly skips scheduled parenting time is just as guilty of violating the contract as a parent who doesn’t deliver the child for the other parent’s scheduled parenting time. If the child refuses to visit or communicate with a parent, both parents are still expected to honor the terms of the custody agreement until the court modifies. The other parent has the right to request that the court enforce the agreement with mandatory visitation.
If your child refuses to visit or communicate with their other parent and you believe that it’s in the child’s best interests to deny visitation, the best course of action is to file a suit with family court to modify the custody agreement. You’ll need to provide sufficient evidence to the court to back your claim, and you’ll want a good attorney in your corner, but assuming the court agrees with you, the judge can eliminate the requirement for mandatory visitation. Depending on the situation, the judge may also choose to modify the legal decision-making portion of the agreement, too.
Grounds to Modify a Custody Agreement
Generally speaking, there are four cases where the court will agree to sign off on an order to modify a custody agreement:
- Both parents reach an agreement
- The child is of suitable age and maturity, and has expressed his or her preferences
- The parent who has the legal decision-making right to designate the child’s primary residence has voluntarily given up primary possession and care of the child for at least six months
- There has been a material and substantial change in the child’s circumstances
It goes without saying that in each of these situations, the child’s best interests are still the deciding factor. The court will not approve a request to modify custody based on an agreement between the parents if the agreement is not in the child’s best interests, nor will the judge honor the child’s request to stop visiting a parent if doing so isn’t in the child’s best interests. On the same level, a parent’s voluntary relinquishing primary care and possession for six months doesn’t automatically necessitate a modification, nor does a material and substantial change in the child’s circumstances. These are all valid grounds to request a modification, but each situation must be weighed against the other 10 factors that were previously discussed.
How to Modify a Custody Agreement
If the primary force behind your request for modification is the child’s preferences, the court will assign a special investigator to interview the child (children don’t normally address the court directly). The interviewer will seek to understand the reasons behind the child’s preferences, and she will present her findings to the court in a formal report.
At the hearing, you will also have the opportunity to present evidence as to why honoring the child’s wishes is in their best interests. Verbal testimony is appropriate, but physical evidence is usually more compelling. Of course, the other parent will also have an opportunity to fight this motion and offer evidence that terminating his or her parental right to parenting time is not in the child’s best interests.
When the judge has enough information, he or she will determine whether modifying the custody agreement is in the child’s best interests, and if so, then to what extent the agreement should be changed. Even if the judge doesn’t agree to completely eliminate mandatory visitation, they will likely limit parenting time to accommodate the child’s expressed preferences.
Receive Help Modifying a Custody Agreement in Arizona
To receive help modifying a custody agreement in Arizona you will want to meet with family law attorney. With an attorney’s assistance, you’ll can file a suit to modify legal decision-making and/or parenting time. Fill out the form below or give us a call at (480) 467-4348 to talk with our family law team today.
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