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FAST FACTS ABOUT CHILD CUSTODY
Under Arizona law, the term child custody consists of two concepts — legal decision-making and parenting time — which closely correspond to legal and physical custody, terms commonly used in other jurisdictions. Both elements are established by filing a petition with family court. If parents agree about everything, they can ask the court to adopt a parenting plan. Otherwise a judge will determine legal decision-making and parenting time according to the child’s best interests.
This term is frequently used throughout family court and it refers to the statutory factors enumerated in A.R.S. § 25-403 that family courts must consider when determining legal decision-making and/or parenting time, including:
1. The past, present and potential future relationship between the parent and the child.
2. 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.
3. The child’s adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that 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.
7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
10. Whether a parent has complied with chapter 3, article 5 of this title.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
Speaking very generally, Arizona law favors joint legal decision-making and frequent and meaningful parenting time for each parent.
Legal decision-making refers to a parent’s authority to make certain types of decisions for his or her child, including non-emergency medical decisions, educational decisions, and religious decisions. The family court may order joint legal decision-making where the parents must confer and agree before any major legal decision is made for their children or it may award sole legal decision-making to one parent to authorize that parent to make all important legal decisions without conferring with the other parent. The family court also has discretion to carve out certain exceptions or limitations to its legal decision-making orders. This means the court can award one parent sole decision-making on certain categories of decisions only. Alternatively and more controversially, the family court can award final say to one parent. There is some current debate, including active appeals, as to whether the law enables this and, if so, whether it is technically sole decision-making with an order to confer or whether it is joint decision-making with one parent authorized to ‘break the tie’ if the parents cannot agree.
Joint legal decision-making is most commonly awarded when neither parent has any fitness concerns. But because neither parent’s rights are superior, it can lead to future litigation to resolve disagreements.
Sole legal decision-making is most commonly awarded when one parent has a history of significant domestic violence or substance abuse. More rarely, it also may be awarded when the parents cannot effectively communicate, usually when one parent is non-responsive or especially combative and hostile.
Parenting time refers to the time children spend with each parent. There are virtually unlimited permutations of parenting time schedules, based on the unique circumstances of every case. One of the more common schedules is known as a 5-2-2-5 schedule where, as an example, one parent might exercise parenting time every Monday and Tuesday, the other parent would have Wednesday and Thursday, and the parties would alternate weekends. It is called a 5-2-2-5 to represent the two week rotation where the first week Parent A has five days and Parent B has two days and the second week Parent A has two days and Parent B has five days. Some parents prefer a simpler week-on, week-off approach to equal parenting time. Where these schedules get more complex are when fitness or logistical concerns exist to justify restriction of one parent’s parenting time to less than equal. Because even when both parents are fit, equal time is not always possible or in the child’s best interests.
It is also important to mention that while parenting time is never contingent on the payment of child support (meaning a parent cannot withhold parenting time if the other parent fails to pay), the quantity of parenting time awarded can profoundly impact the calculation of support.
Legal decision-making and parenting time can be modified when there is a substantial and continuing change to material circumstances. That’s a lot of legal jargon, but it basically means that if something about the existing child custody orders is no longer working or if other factors change (e.g. a parent relocates or changes employment schedule) to make the current orders impractical, modification may be an option. Usually parents must wait at least one year from the date the previous custody orders were entered to modify, but there are exceptions. For example, a parent may be able to modify earlier if the other parent is substantially non-compliant with the current orders and a parent always can modify on an emergency basis if there is imminent risk of harm to the child. Whenever parenting time is modified, child support also must be recalculated. If you are unsure whether your situation justifies modification, you can ask our child custody attorneys during a free consultation.