Jaburg Wilk


Can a Child Choose Which Parent to Live With? Madonna’s Teenage Son Believes He Can

Categories: Family Law, Family Law

Madonna vs Guy Richie child custody

Madonna has dominated the billboard charts, but recently she's dominating the headlines with a custody battle with her ex-husband, Guy Richie, over their teenage son, Rocco Richie. Last summer the "Like a Virgin" singer announced Rocco would join her on the upcoming Rebel Hearts tour. Rocco stayed on the tour for several months but rumors started swirling and gossip websites frequently reported screaming matches and fights between the singer and her son. Rocco was allegedly unhappy with the strict rules implemented by Madonna, so in December he fled to London where his father resides.

Madonna vs. Guy Richie: A Fight for Child Custody

Rocco remained in London with his filmmaker father, stepmother Jacqui Ainsley and their two young children during the holidays and made it publically clear he wished to permanently remain in London with his father. Madonna responded by filing an emergency petition in Manhattan Supreme Court, which asked that Rocco be ordered to return to New York City. Justice Deborah Kaplan agreed and ordered that Rocco return to New York before the January start of his school session. Rocco refused and his father sent an attorney to the December 23, 2015, hearing to represent his interest. The attorney made it clear Rocco would not voluntarily return to the United States. 

Complicating matters further, there is also a pending court proceeding in the UK, where Rocco is represented by his own lawyer. Madonna and Guy Ritchie's 2009 divorce and custody agreement was registered in New York, so it is likely the custody dispute will be decided in New York. A hearing will be held on February 3, 2016 to resolve Rocco's future, but Rocco has made clear his intentions, telling his followers on Instagram, "I'm staying here, bro." He has since deleted this social media account.

The dispute between Madonna and her son is not uncommon for many parents. Children may prefer a certain parent at different ages and stages. However, Madonna's parenting woes does raise the question of what role, if any, a child can play in determining which parent will have primary physical custody. 

AZ Courts Require Parenting Plans

In Arizona, before the court will award joint custody [1]  parents must submit a parenting plan that addresses legal decision-making, each parent's "rights and responsibilities for the personal care of the child," and decisions regarding education, health care, and religious training. See A.R.S. § 25–403.02(C)(1), (2). If parents cannot agree on the terms of the parenting plan, even after mediation, the court will make these important decisions. The best interests of the children are of paramount importance to the court when making these decisions. However, most parents are surprised to learn that a minor child does not have the legal right to decide which parent to live with.

That does not mean that a court will not consider a child's custodial preference. In Arizona, the Legislature mandated several factors the court must consider when determining what is in the best interest of the child, but will normally not give controlling effect to any of them alone. See A.R.S. § 25–403(A)(1)-(11). One  factor is the child's preference, "if the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time." See A.R.S. § 25–403(A)(4).  

Children's Right to Decide on Living Situation

Children decide living situation

In Arizona, and most states, children do not have the legal right to decide which parent they will live with. But, mature children do have a right to state their opinion. Although the court may consider the child's wishes, it is one factor among many and not decisive. Before the court will consider the child's preference, it must be shown that the child is mature enough to make an intelligent judgment on custody. There's no specific age, but in general, older children's opinions carry more weight than those of young children. Older children are more likely to be able to assess their relationship with each parent, while younger children are more likely to be swayed by superficial factors. 

No other single issue is more heated, emotionally charged, and important than child custody matters. In Arizona, child custody is best settled through voluntary agreement between the parents. The parenting plan is supposed to place 'the best interests of the child' first. We know that children's needs change as they grow and they often develop a preference for living with one parent over the other. Teenagers are likely to have stronger opinions on which parent they prefer to live with and these opinions can change rather often or unexpectedly. While children should not be rendered voiceless and powerless to meet their own changing needs or voice their opinions, they are not the final decision makers.  Ultimately, it is a parental decision, and if the parents do not come to an agreement, then it is be up to the court. With so much on the line, the assistance of an experienced family law attorney who can guide you through the process and serve as your advocate if necessary. 

About the author: Jason B. Castle is a Partner at the Phoenix law firm of Jaburg & Wilk. He is the Past-President of the Arizona Chapter of the Association of Family and Conciliation Courts, member of the State Bar of Arizona, and a member of the Maricopa County Bar Association, where he chaired the Family Law Section and Legislative Committee. He has expertise in child custody and Decision Making Authority. More recently he was named a Southwest Super Lawyer Rising Star. Got a divorce law question for Jason?

This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation.

 [1] In 2012, the Arizona Legislature changed the term "joint custody" and to "joint legal decision making," which means both parents share decision-making and neither parent's rights or responsibilities are superiors. See A.R.S. § 25-401(2).  Physical custody is called "parenting time." See A.R.S. § 25-401(3).  And each divorcing parent has "legal decision-making" authority – the right to contribute to or solely make important decisions regarding their child's upbringing. See A.R.S. § 25-401(5).  This is the equivalent of legal custody in other states. To prevent confusion, this article will only refer to "custody" or "physical custody."