Arizona Legal Decision-Making vs. Parenting Time

by | Nov 11, 2013 | Child Custody, Legal Decision-Making, Parenting, Parenting Time, Uncategorized

Arizona Legal Decision-Making vs. Parenting Time

Do You Have Custody On Your Mind?

Written by: Stefano Ceroni

When it comes to children during a divorce or separation, there is usually one thing on the forefront of everyone’s mind: CUSTODY.

As divorce and family law attorneys, we hear this word used all the time…

“I want full custody… I want to take away his custody… I don’t care about anything else, I just want custody.”

Legal Decision-Making vs. Parenting Time
Legal Decision-Making vs. Parenting Time

The problem is that most people, by no fault of their own, have absolutely no idea what the term “custody” actually means. As a result, I often feel that people spend too much time fighting over this issue, when perhaps there are other issues that may be more important to their underlying interests.

What Does The Term Custody REALLY Mean?

That being said, before we go any further, I would like to give a very brief and abbreviated explanation regarding the true meaning of the term “custody.” Here goes nothing:

In most states, the term “custody” refers to two smaller and very distinct sets of parental rights: “legal custody” and “physical custody.” Generally speaking, legal custody deals with a parent’s right to make significant legal decisions regarding his or her children.  In other words, decisions regarding religion, medical care and education. Accordingly, parents could either share joint legal custody (i.e. they are both allowed to make these decisions) or one parent could have full (or sole) legal custody, allowing him/her the individual right to make these decisions on behalf of the children without the express input or permission of the other parent.

Legal Custody vs. Physical Custody

No matter the arrangement, the issue of legal custody is, and has always been, separate and distinct from physical custody.  Put another way, even if one parent had full or sole legal custody over their children, it did not necessarily imply that that person had physical custody, as well.

In turn, physical custody, as you can probably guess, dealt with a parent’s right to spend actual physical time with the child[ren]. Generally speaking, parents who were designated as the primary residential parent (i.e. the parent who had the majority of physical access to the kids) were deemed to have been awarded physical custody, subject to the other parent’s “visitation.” Consequently, even if you were not awarded physical custody, as a parent, you were still entitled to spend some physical time with your children.

Now, although many states still use these two terms when it comes to identifying parental rights, some states, like the state of Arizona, have changed their verbiage to make the laws a little easier to understand. In fact, in Arizona, the Legislature has gone as far as completely removing the term “custody” from the laws regarding parental rights. In its place, Arizona substituted the terms “legal decision-making” (f.k.a. legal custody) and “parenting time” (a hybrid of physical custody and visitation).

Your Arizona “Custody” Case

So, what does that mean for you and your Arizona child “custody” case?

Well, for one, it means that when you say the word “custody” in Arizona, a divorce attorney or judge is going to assume that you are only talking about “legal custody” or what is now referred to as “legal decision-making.” So, when someone says they want full custody, they are only really asking that they be awarded the sole right to make the major decisions regarding their child’s education, religion, medical care and personal care. That’s all.

In other words, in the State of Arizona, “custody” (as people still refer to it) no longer has anything to do with a parent’s right to physical access to their kids.  In fact, because it is now limited to the issues of legal decision-making, it also has no effect on a parent’s right to make emergency medical decisions or even routine decisions about the immediate care and welfare of their child. Those rights are awarded to both parents regardless of whether they share joint legal decision-making or one party has sole legal decision-making.

Legal Decision-Making (Custody) May Not Really Matter In Your Case!

That being said, in my opinion, “custody” or “legal decision-making” may, in some cases, no longer be the most important issue when it comes to one’s children.

Wait — what? Are you saying custody/legal decision-making doesn’t matter?

Absolutely not!

All I am suggesting is that depending on the facts of a particular case, it may not be as important as the alternative issue known as “parenting time.”

Think of it like this: Because custody or legal decision-making rights only deal with major decisions regarding a limited number of situations, the power of these rights are not always at play.  In addition, because many parents (at least those who place their kids’ needs above their own) agree on the major issues of religion, medical care and education, there are not a significant amount of issues that come up on a daily basis where one party’s lack of decision-making rights has a severe negative impact on their ability to parent.

Parenting Time Might Be MORE Important Than Custody

In turn, the issue of “parenting time”, at least in my opinion, can have a much greater effect on how much one parent is able to influence and be a part of his or her child’s life:

In Arizona, “parenting time” has replaced the old term of “physical custody” and has now become applicable to both parents.  Meaning, even if a parent is designated as the primary residential parent (i.e. having more than 50% of the access time to their children), it does not mean that they have been awarded physical custody or that they are allowed to make decisions that limit the other parent’s physical access to their child[ren].

That being said, during a parent’s parenting time (regardless of the designation of legal decision-making rights), he or she is not only allowed to make emergency decisions regarding the child, but is also allowed to make all routine decisions regarding the child’s care.  In other words, just because a parent may or may not have legal decision-making rights doesn’t mean s/he does not have any decision-making rights, whatsoever. In fact, because most decisions regarding children fall outside of the scope of the major decisions protected by legal decision-making, the parent with the majority of the parenting time is presumably making more decisions for their child than the parent with less parenting time (even if the parent with less parenting time has sole legal decision-making authority). In addition, unlike legal decision-making, a parent’s parenting time also has a direct impact on their child support, and, in turn, responsibility for unreimbursed medical expenses and potential tax dependency exemptions, as well.

As a result, for some people, fighting over the issue of parenting time may be of much more value than fighting over the issue of legal decision-making. Unfortunately, because most people are still uneasy with true meaning of the term “custody,” few realize just how limited the rights associated with legal decision-making can actually be.

Talk to An Attorney About the Importance of Your Legal Decision-Making Rights Over Your Children

Now, just to be clear, there are still a number of potential disadvantages associated with having less than equal legal decision-making rights. As a result, I do not suggest that anyone voluntarily forfeit those rights without first speaking to an attorney.  However, I do think that people often get caught up on the issue of legal decision-making when for most, the issue of greatest importance is really that of “parenting time.”

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