Two questions that often get asked in custody cases are what weight does the child’s preference have in a custody case, and how can I demonstrate to the judge that I have been the primary care provider.

The preference of your child is only one of the many factors a judge may consider in determining a parenting time schedule. The age of your child and his or her ability to express the underlying reason for their preference to live with either parent will determine the amount of weight the judge will give to your child’s preference. Although there is no age at which your child’s preference determines parenting time, most judges give more weight to the wishes of an older child such as a child who is 16 or 17.

The reasoning underlying your child’s preference is also a factor to consider. Consider the fifteen-year-old who wants to live with mother because “Mom lets me stay out past curfew, I get a bigger allowance, and I don’t have to do chores.” Greater weight might be given to the preference of an eight-year-old who wants to live with mother because “she helps me with my homework, reads me bedtime stories, and doesn’t call me names like Dad does.”

If you see that your child’s preference may be a factor in the determination of parenting time, discuss it with your lawyer so that this consideration is a part of assessing the action to be taken in your case.

For purposes of establishing that you were the primary care provider, one tool to assist you and your attorney in establishing your case is a chart indicating the care you and your spouse have each provided for your child. The clearer you are about the history of parenting, the better job your attorney can do in presenting your case to the judge.

Look at the activities in the chart below to help you review the role of you and your spouse as care providers for your child.

Parental Roles Chart

Activity Mother Father
Attended prenatal medical visits
Attended prenatal class
Took time off work after child born
Got up with child for feedings
Got up with child when sick at night
Bathed child
Put child to sleep
Potty-trained child
Prepared and fed meals to child
Helped child learn numbers, letters, colors, etc.
Helped child with practice for music, dance lessons, sports
Took time off work for child’s appointments
Stayed home from work with sick child
Took child to doctor visits
Went to pharmacy for child’s medication
Administered child’s medication
Took child to therapy
Took child to optometrist
Took child to dentist
Took child to get haircuts
Bought clothing for child
Bought school supplies for child
Transported child to school
Picked child up after school
Drove car pool for child’s school
Went to child’s school activities
Helped child with homework and projects
Attended parent-teacher conferences
Helped in child’s classroom
Chaperoned child’s school trips and activities
Transported child to daycare
Communicated with daycare providers
Transported child from daycare
Attended daycare activities
Signed child up for sports, dance, music
Bought equipment for sports, music, dance
Transported child to sports, music, dance
Attended sports, music, dance practices
Attended sports games, music, dance recitals
Coached child’s sports
Transported child from sports, music, dance
Know child’s friends and friends’ families
Took child to religious education
Participated in child’s religious education
Obtained information and training about special needs of child
Comforted child during times of emotional upset

Showing that you were the primary caretaker is just one factor the court considers. Even if your spouse was not a very involved parent prior to the divorce, this generally is not the sole factor the court will consider. Most judges will assume that even an uninvolved parent prior to the divorce will assume a more active role with the children after the divorce. However, utilizing the chart above will help the Court understand the roles of each parent prior to the dissolution action.

About the Authors:

Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.

Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.