21 Most Asked Questions About Custody (Legal Decision-Making) and Parenting Time

by | Sep 3, 2013 | Child Custody, Child Support, Legal Decision-Making, Modification of Custody, Parenting, Wendy Hernandez Blog

21 Most Asked Questions About Custody (Legal Decision-Making) and Parenting Time

Are you dying to know the answers to the “21 Most Asked Questions About Custody (Legal Decision-Making) and Parenting Time?”

If so, we’ve got them all right here in one place for you.

In looking at these questions and answers, remember that they are generalizations and are not intended to be legal advice. The facts of each case are different and if you are considering going back to court on a custody (decision-making) or parenting time issue, you should consult with a lawyer about your situation.

Also, for purposes of this article, the terms custody and legal decision-making are used interchangeably.


21 Most Asked Questions About Custody (Legal Decision-Making) and Parenting Time:

1. If I have been the primary caretaker of the children their entire lives, can I get sole custody of the children?

Maybe, but not based on that fact alone. The judge will look at all the factors relevant to custody set forth in Arizona Revised Statutes 25-403.

2. If my ex is a drug addict, can I stop him from seeing the kids?

Maybe. Before the judge stops him from the seeing the kids though, the judge will want to exhaust every other alternative that still will allow your ex to see the kids while protecting the kids. These alternatives might include supervised visits and random drug testing.

3. If I am a victim of domestic violence at the hands of my ex, can I get sole custody of my children?

Maybe. If the court makes a finding of domestic violence against one of the parties, there is a presumption that joint legal decision-making is not in the best interests of the children. That presumption is rebuttable, but not without concrete steps being taken by the abuser (some of which are outlined in the Arizona statute).

4. My ex’s new boyfriend is mean to my kids. They hate being around him. Can I stop the kids from having to see him?

Unless your ex’s new boyfriend’s behavior rises to the level of abuse, there is probably nothing you can do to stop him from being around your kids. Your ex has the right to choose who the kids are around when they are with her.

5. I am depressed and seeing a doctor who has prescribed me medication for that condition. I don’t want my ex to find out because I know he will try to get sole legal decision-making authority. Could he actually win sole legal decision-making because I’m depressed and on meds?

Not based on that alone. Again, the judge will review all the factors set forth in A.R.S. 25-403 and decide what is best for the children. To improve your position in the case, make sure you continue with your treatment and that you abide by your doctor’s plan as long as necessary.

6. My ex has never been involved in the day-to-day raising of the kids. Now that we are getting a divorce, he says he wants to be and that he wants to spend 50/50 time with them. Is there really a chance he might get equal parenting time?

Yes. As always though, it depends on a lot of factors (outlined in A.R.S. 25-403) including the ages of the children, the wishes of the children, whether they are in school, your ex’s work schedule history, daycare arrangements, etc. Depending on the judge, if your ex can show that he is competent, willing and able to share equal time, he may get it.

7. I have a history that includes suicide attempts, eating disorders and ongoing mental health treatment. My ex (who was NEVER the primary caretaker of the kids) is telling me that if I don’t agree to joint custody, he is going to shoot for sole custody and force me to disclose all of my medical records about my past. Can he threaten me like this?

Yes. One of the factors the court has to consider in making an order about legal decision-making authority is the mental, physical and emotional health of both parties. Because of this, if you and your ex cannot agree, all bets are off. You WILL have to disclose those records, and the judge WILL give that information the weight it deserves.

8. I am a father, and I am discouraged because I have heard that Arizona is a mother’s rights state. Is this true?

No. Arizona is not a mother’s rights state, nor is it a father’s rights state. Judges in Arizona seek to protect the best interests of children first. If parents can’t agree about custody and parenting time issues, judges will try to enter orders that are best for the kids. That may mean that the parents share joint legal decision-making authority or that one parent gets sole legal decision-making authority. It has nothing to do with whether you are the mother or the father.

9. I just found out that my ex was convicted of a DUI within the last few months and is on probation now. Can I get sole legal decision-making authority over the children?

Maybe. If your ex was convicted of a DUI, there is a presumption the judge must follow that says joint legal decision-making authority is not in the best interest of the children. However, your ex might be able to overcome this presumption (with concrete action) and redeem himself in the eyes of the judge.

10. My daughter is 12 years old now and says that she wants to come live with me most of the time (instead of spending most of her time with her mom). I heard that when kids reach the age of 12, they can make the decision about where they want to live. Is this true?

Only if both parents agree with the child’s wishes. If both parents don’t agree, the judge will have to make the decision. In that case, the child’s wishes is just one of the factors that the judge will consider under A.R.S. 25-403.

11. My ex wants equal time with our 3 kids, but he lives in a 2 bedroom apartment where all three of them have to share one room. Granted, they each have a bed to sleep in, but this just doesn’t seem right to me. Is there a chance my ex will actually get equal time in spite of his crowded living arrangements?

Yes. In the court’s eyes, the most important thing is that the kids are safe, secure, well-fed, loved and cared for properly. Because they have their own “space” and “beds,” a judge is probably not going to hold the fact that they share a bedroom against your ex.

12. My ex and I share equal parenting time with the kids. My ex is telling me he is moving to the opposite side of town which will mean that when the kids are with him, they have a 45 minute commute (each way) to and from school each day. Do I have a good reason to ask the court to reduce my ex’s time?

Yes, you do have a good faith basis for asking the court to reduce your ex’s time during the school year. While a 45 minute commute each way is a lot for a school-aged child, there is still no guarantee that the judge will reduce your ex’s parenting time. The judge could redistribute the parenting time (to keep it roughly equal) so that your ex would get more time with the children when they are not actually in school (i.e., during the summer).

13. My ex has filed a motion asking for more parenting time, but he doesn’t even exercise the time the court has already given him. What can I do?

You could file a Motion to Dismiss your ex’s motion or you could file a counter-petition which asks to reduce your ex’s time based on his visitation history. Be prepared with documentation (calendars, journals, etc.) that will show the parenting time actually exercised. Also, be sure to ask the court to award you attorney’s fees because your ex has not filed the motion in good faith.

14. My ex is always wanting to change the court-ordered parenting time schedule. I always tell her that we need to stick by the court’s order. Is this the right thing to do?

Only you can know what is right for your case and your kids. Remember though, there will come a day when YOU want to switch parenting time days. If you haven’t been flexible in the past, your ex may not be flexible when you need it. However, in being flexible, you do have to balance how much swapping is too much; the kids need consistency in the schedule.

15. I have just found out that during his time with the kids, my ex often dumps them off at the babysitter’s. If he doesn’t want to spend time with them, I do. What can I do?

You can ask your ex to agree to allow you to have the first right of refusal if he is not going to be with the children a certain minimum amount of time (at least three hours) during his parenting time. You should also extend the same courtesy to him. If he won’t agree to this, you could ask a mediator, your parenting coordinator or the judge to put an order like this in place.

16. Our court order says that I can have my kids every other weekend and one overnight each week. For three years though, we’ve been sharing equal time. My ex and I just got into an argument over my new girlfriend, and now she is insisting that we follow the court order. What should I do?

You should go to mediation and/or file a motion to modify the parenting time in court. Your documented parenting time history over the last three years is going to be a factor in your favor when the judge is deciding whether to increase your visitation “on paper.” Depending on her reasons for not wanting you to have equal time, your ex may or may not be acting in good faith.

17. My ex enrolled my son in a baseball program which is going to require me to take him to practices and games during MY parenting time. I have a problem with this. What would a judge say about this?

Generally speaking, judges tell parties not to enroll the children in extra-curricular activities that will affect the other parent’s time. Chances are that the judge will not require you to take your son to those games and practices during your time.

18. My ex has enrolled our kids in several extra-curricular activities without consulting me first. These activities will not happen during my time with the children, but my ex is demanding I pay half the cost which is more than I can afford. Do I have to pay?

Generally speaking, judges only require both parties to pay when they BOTH agree that the children should be enrolled in the extra-curricular activities.

19. It is time to increase child support. Under our parenting plan, my ex is supposed to have equal parenting time with the kids. However, he only sporadically spends time with them. What type of credit for parenting time will he get under the Arizona Child Support Guidelines?

If you have documentation showing the parenting time he actually spends with the kids, the judge probably will not be inclined to give him credit for equal time. However, be aware: if your ex also produces “documentation” or says something different than you do about the time he has been exercising, the judge will have to make a decision about who is more believable on that topic.

20. When we got divorced, I agreed to do all the picking up and dropping off during my parenting time. I don’t think this is fair anymore. Is this something a judge might change if we go to court on bigger issues in the future?

Yes, but this is a perfect issue to try and settle in mediation prior to filing a lawsuit in court. You are right: it is only fair that both parents share in transportation responsibilities.

21. My ex is a deadbeat dad and is thousands and thousands of dollars behind in child support. Do I still have to let him see the kids during his parenting time?

Yes. His payment of child support and his parenting time with the children are unrelated in the eyes of the family court. Two wrongs don’t make a right; even if he is not following the court’s child support order, you still have to follow the court’s parenting time orders.

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