The terms “physical custody” or “visitation” are referred to as parenting time in Arizona. Parenting time is the component of child custody that defines the time each parent spends with his or her children. This will mostly provide an overview of parenting time, including how it is determined by Arizona family courts. Separately we will address more involved topics like parenting time modification and enforcement.
Establishment of Parenting Time
Parenting time typically is established at the same time as legal decision-making, the “legal custody” component of child custody. Unmarried parents may file a petition to establish and married parents can establish parenting time and legal decision-making during a divorce or legal separation. Parenting time and legal decision-making are determined in accordance with the same statutory factors—colloquially referred to as the best interest factors—but the two concepts are independent and neither necessarily impacts the other. For example, it is entirely possible for one parent to be awarded sole legal decision-making authority even though the parties share equal parenting time.
The Best Interest Factors in Arizona
The phrase “best interests of the children” is used throughout Arizona child custody cases. It refers generally to the directive for all family courts to prioritize the children’s best best interests in every child custody cases. More specifically, it also refers to the following statutory factors family courts are required to consider when determining parenting time, provided under A.R.S. § 25-403(A):
- The past, present and potential future relationship between the parent and the child.
- 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.
- The child’s adjustment to home, school and community.
- If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
- The mental and physical health of all individuals involved.
- 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.
- 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.
- Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
If parenting time is contested, the family court must make written findings for how each of these factors impacts the children subject to the child custody case.
Common Parenting Time Schedules
When both parents are “fit,” Arizona law favors maximal parenting time with each. This does not always mean equal parenting time, as sometimes equal parenting time is logistically impractical. The parents may live too far apart or there may be other scheduling difficulties. But the Court of Appeals has made it clear that there is no legal presumption against equal parenting time or gender bias when determining parenting time.
But equal parenting time can take many forms. Some parents prefer to alternate weeks with their children. Although perhaps self-explanatory, visually the alternating week schedule looks like, with each letter representing one of the parents:
A – A – A – A – A – A – A
B – B – B – B – B – B – B
Others prefer more regular but shorter periods of parenting time because it means there will be shorter periods away from their children. Because the purpose of this article is to provide an overview of parenting time in Arizona, it is important to discuss the “lingo” or terminology commonly used by judges and child custody attorneys. One example is a 5-2-2-5 (pronounced “five two two five”) schedule. This is one of the most favored equal parenting time schedules used in Arizona. This schedule means each parent exercises parenting time two days per week and the parents alternate the other three days. Usually one parent exercises parenting time every Monday and Tuesday, the other parent exercises every Wednesday and Thursday and the parties alternate Friday through Sunday every week. This gives each parent parenting time for seven out of every fourteen days. Visually, it is a fourteen day (two weeks) rotation that looks like this:
A – A – B – B – A – A – A
A – A – B – B – B – B – B
One of the disadvantages to this schedule is that it means both parents spend five consecutive days away from their children every other week.
An alternative schedule is called a 2-2-3 (“two two three”). This schedule works like the 5-2-2-5, only it rotates more frequently so the longest period of time a parent is away from the children is three days. Visually, it looks like this:
A – A – B – B – A – A – A
B – B – A – A – B – B – B
A potential disadvantage of this schedule is that each parent’s two-day period of parenting time rotates weekly so it can be more difficult for the parents (and the children) to anticipate in advance where parenting time will occur on a specific day in the future.
If there are fitness or logistical concerns, equal parenting time may be inappropriate. A parent may be awarded less parenting time and other conditions may be imposed such as a requirement that the parenting time be supervised to protect the children. There are virtually unlimited permutations of parenting schedules that are customized to the unique facts of every child custody case.
Modification of Parenting Time
Once established, parenting time can be modified upon showing of substantial and continuing changes to any circumstances that affect the best interests of the children. Generally speaking, a parent must wait at least one year after a parenting time order to modify. This time requirement does not apply to emergency situations but the burden of proof for an emergency temporary order is substantial.