In Barron v. Barron, the Arizona Court of Appeals reversed the family court’s parenting time determination because it was based on impermissible presumptions about equal parenting time and gender.

The parties were married for eleven years and had three children together. Shortly after Mother filed for divorce, the parties entered into temporary agreements to share joint legal decision-making and approximately equal parenting time. Approximately fourteen months later, when the family court entered its ruling, it reduced Father’s parenting time to every other weekend and one overnight per week.

In its ruling, the family court stated that the ‘totality of circumstances’ favored designation of Mother as the primary residential parent because:

•  [Mother] has been the primary care provider for the children prior to this action. The children have historically spent more time with [Mother] than [Father] since their birth.

•  The children have not fully adjusted to equal parenting time during the pendency of the temporary orders. The court finds the children want and need to spend more time with [Mother].

•  The military duties of [Father] often make him unavailable during his parenting time resulting in the children spending too much time with the paternal grandparents relative to time they could be with [Mother].

•  The children are girls who naturally will gravitate more to [Mother] as they mature.

•  The experience during the temporary orders has been unreasonable occasionally. . . . The court finds [Father] has been comparatively more unreasonable and inflexible than [Mother] [in agreeing to trade parenting time]. In particular, [Father] has placed his interest over the best interest of the children in not allowing more frequent weekend parenting time by [Mother] regardless of the strict terms of the stipulated temporary order.

•  It is unlikely the parties will both reside in Yuma during the minority of all the children. Significant geographical separation of the parties precludes equal parenting time. Changing equal parenting time now would be less disruptive than in the future.

•  Children should have a primary home and bedroom where special items like collections, posters and private things are maintained as opposed to forcing children to equally divide their time and things and clothes equally between two homes.

•  A primary residence promotes stability and continuity for children.

With the exception of the family court’s comparative assessment of the parties’ reasonableness, the Court of Appeals rejected all of these findings as contrary to Arizona law and/or unsupported by evidence.

First, the family court erroneously applied a presumption against equal parenting time. There is no legal authority or argument to support the broad generalization that children should have a primary residence; and Mother presented no evidence that it uniquely applied to the children in this case. The Court of Appeals further reasoned that divorce necessarily requires children to share time between their parents’ homes and that nothing in Arizona law supports a presumption that one of those homes must be the primary residence.

Similarly, the Court of Appeals rejected the trial court’s finding that “[a] primary residence promotes stability and continuity for children.” Mother presented no evidence to support this conclusion and, again, this cannot be presumed.

It is important to understand that this part of the opinion does not preclude or prohibit a family court from determining, based on evidence, that a primary residence is in the best interests of the children in a particular case. This opinion merely prohibits the presumption that is contrary to the starting point of our statute — that a parenting plan should maximize each parent’s parenting time.

The family court also erred when it concluded that the female children “naturally will gravitate more to [Mother] as they mature.” This gender-based presumption is not only contrary to Arizona law, but possibly also unconstitutional. Arizona law expressly prohibits the family court from using the parent’s or child’s gender as a basis for its parenting plan.

Additionally, the family court improperly weighed the significance of Mother’s historical status as the “primary care provider.” While this used to be a statutory factor, the legislature specifically removed it in 2012 when it revised the legal decision-making and parenting time laws. Each parent’s relationship with the children is still a relevant factor, but “[a]bsent evidence in the record that a parent will be unable to properly care for a child, however, the [family] court errs when it presumes – as the court did here – that the child’s best interests necessarily are served by affording more parenting time to the former stay-at-home parent than to the other.”

The family court erred again when it found that changing parenting time now, in anticipation of Father’s future deployment or reassignment, would be less disruptive than changing parenting time at that unspecified time. This logic would create an adverse presumption against military parents.

Next, the Court of Appeals held that the family court improperly weighed Father’s periodic need for child care against his request for equal parenting time. Father proposed a right of first refusal, meaning that if he was personally unavailable for more than four hours during his parenting time, he would offer Mother an opportunity to care for the children during that time. If Mother declined, Father would use his parents who Mother conceded were fit caregivers for the children.

Summarily, the Court of Appeals also held that no evidence was presented to support the family court’s finding that the children had not fully adjusted to the approximately equal parenting schedule set forth in temporary orders. Critically, the Court of Appeals implied that a therapist or similarly credentialed expert would be needed to support this contention.

Separately, the Court of Appeals reversed the family court’s ruling as it pertained to the division of military benefits. Though military benefits earned during the marriage may be community property subject to equitable division during divorce. The problem is that the family court ordered Father to indemnify Mother if Father elected to continue employment past the minimum retirement age and pay to Mother what she would receive if Father retired. Federal law specifically prohibits courts from ordering a military member to retire at any particular time to effectuate payment to someone else.

The Court of Appeals also denied Father’s request for equalization or reimbursement of community expenses he paid with separate funds after the date of service. While generally a spouse can request reimbursement of certain post-service contributions to community expenses, the family court held (and the Court of Appeals agreed) that the overall division of community property was equitable. If the family court ordered Mother to reimburse Father for community expenses, it felt it would need to retroactively modify temporary orders to award Mother temporary spousal maintenance. Arizona family courts have discretion to enter judgment nunc pro tunc (meaning retroactively correct an earlier ruling) as justice may require.