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Wendy R Hernandez

Wendy Hernandez’s Answers

2 total

  • Can a non-custodial parent get custody if he moved out of the state after we divorced

    my ex moved out of the state 4 years ago and is now trying to get physical custody of our son based solely on our son saying he is bored and unhappy. when we ask why he says because we don't have a dog and we don't let him play xbox often. our son...

    Wendy’s Answer

    If you and your ex are unable to see eye-to-eye on this issue, your ex could file a Petition to Modify Child Custody, asking the judge to decide the issue for you and him. Anytime a matter is left to a judge, it is impossible to predict the outcome. So, in answer to the question about whether your ex could get physical custody, the answer is "maybe".

    In answer to your question about whether you are "in the wrong", that question in and of itself demonstrates you are examining your conscience about the situation. Self-reflection reveals an open mind. If you are willing to take a look in the mirror and consider your personal desires and motives, I would venture to say you are moving forward in good faith, and you are probably not "in the wrong" (at this point, anyway).

    Having said that, however, aside from your own feelings, you also will have to consider the relevant law in Arizona. A judge's primary concern will always be "the best interest of the minor child". Before deciding whether to make a change in physical custody, the judge is required by Arizona law to contemplate certain factors. These factors are outlined in Arizona Revised Statutes Section 25-403 and include (but are not limited to) the following: (1) The wishes of the child's parent or parents as to custody; (2) The wishes of the child as to the custodian; (3) 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; (4) The child's adjustment to home, school and community; (5) The mental and physical health of all individuals involved; (6) Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent; (7) Whether one parent, both parents or neither parent has provided primary care of the child; (8) The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

    So, as you can see from the items outlined above, although a child's wishes are significant, they are not the only factor a judge will consider in deciding whether a change in custody is appropriate. Taken alone, things like not having a dog and not being allowed to play video games that often are probably not sufficient reasons for a judge to relocate the child from one parent's home (much less to another state). Moreover, the judge will also be on alert for situations when the child is "playing" the parents against one another or where the child feels "guilted" into saying that s/he wants to live with one parent or the other. Keeping in mind the factors outlined above, in addition to the child’s wishes, the judge will consider things such as the child's personal and familial relationships here in AZ, his performance in school, whether or not the child has step or half-brothers and sisters in AZ (or the other state), each parent's reasons for wanting the child to stay/go, etc.

    The best possible result will be obtained if you and your ex are able to agree on a solution. That is the only situation in which you maintain control of your life and the life of your child. Although judges are educated and wise, many of their custody decisions only make one parent happy. In some situations, although a judge has considered all the relevant factors, the end result actually might not be one that is in the best interest of the child, resulting in unhappiness for the child (and the family), as well as multiple trips back to court.

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  • What age do children get to choose who to live with?

    in a divorse what age dose a child get the right to chosse who to live with and how offten they want to see the other parent?

    Wendy’s Answer

    I often meet with parents who are under the impression that a child is able to make his or her own decision about who to live with at a certain age. In Arizona, at any age, "the wish of the child" is only one factor a court considers in determining what type of custody and parenting time arrangement is in the best interest of the child. Although judges start giving the wishes of a child more weight the older the child gets, the child's wish alone (at any age) is rarely the only factor the court will consider in deciding with whom that child lives. There are a few reasons for this logic:

    Judges recognize that in an effort to "please" his or her parent, a child might tell each parent what s/he thinks that parent wants to hear. As a result, you sometimes hear BOTH parents claiming that the child wants to live with him/her. In situations like that, it might take some court-assisted "investigation" to know what the child's true desires are. These cases have to be handled with care so as not to place the child in a position of feeling pressured or like s/he will "hurt" one parents feelings if s/he says what s/he really feels.

    Courts are also aware that in some cases, older children are motivated by different reasons to "play" their parents against one another. As one example, a teenaged child might express that he wants to live with his father, knowing his dad works often and would not be around to "supervise" his time at home and with friends. Although (1) the father might be an amazing parent and (2) the teenager wants to live with him, it might not be in that child's best interest if the father would not be around very much to "keep tabs" on the child.

    Finally, in other cases, an older child might want to live with one parent, but that parent may have significant mental health or substance abuse issues. In situations such as those, before a judge would allow the child to "choose", s/he would probably need to take a closer look at the parent's "fitness" to be the primary residential parent of the child.

    Keep in mind that each circumstance is unique, and the age of the child and the weight of the child's "wishes" would depend on the facts of the case.

    As always, I would encourage you to consult with an attorney in your home state so you can be advised of the specific laws that apply in your case.

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