Child Custody: Legal Decision Making in Arizona

Phoenix and Scottsdale Child Custody

Arizona’s Law Regarding Child “Custody”

 

As of January 1, 2013, the term child “custody” is no longer officially recognized under Arizona law.  As part of the recent changes to Arizona Revised Statutes Chapter 25 (the statute concerning Marital and Domestic Relations) the term child “custody” has been replaced with the phrase “legal decision-making.”  Although this change might seem dramatic, in practical effect, nothing has really changed; the new terminology actually clarifies what the term child “custody” was actually interpreted to mean in the past.

A parent who was previously awarded child “custody” (either sole or joint) was given the authority to make or be involved in decisions regarding his or her child’s medical care, religious training, and educational choices.  Physical access to the child, or having “parenting time”, was a completely separate issue in the eyes of the law.  This means that although one parent may have been awarded sole child custody, the other parent was probably still entitled to some amount of parenting time. The change in the law is simply a reaffirmation of the rule that previously existed and although a person might be awarded sole legal decision-making, the other parent likely will be entitled to parenting time.

 

As a parent facing litigation surrounding your children, you should know that as part of Arizona’s law, one small substantive change has been set forth in the new statute.  Under the updated law, not only does a parent having sole or joint legal decision-making authority retain the right to make legal decisions regarding his or her child’s medical, religious and educational life, but that parent also now has the right to make decisions regarding the “personal care” of the child, as well.  This additional sphere of authority could greatly expand the influence that one parent might have over his or her child.

The Best Interests of The Child

The biggest consideration when decisions about a child are at issue is what result will serve the child’s “best interest.” When making this determination, the Court will consider all factors it deems relevant, giving specific consideration.

 

As those who have gone through divorce or custody proceedings may already know, the Court retains an almost unlimited amount of discretion when making decisions regarding children.  As a result, any time parties are forced to go to trial on the issue of legal decision-making (and even parenting time), there exists a substantial amount of unpredictability.  We are skilled at finding alternative ways to resolve our client issues both in and outside of the courtroom.  We believe a family law attorney’s ability to think creatively and minimize client risk is of vital importance.  Because of that, our attorneys regularly collaborate to find new and improved solutions for meeting all of our clients’ most important goals.

  • The relationships among the parents and the child;
  • The interactions between the child, her parents, siblings, step-parents and any other person significant to the custody determination;
  • How well the child is adjusted to community, home and school;
  • Assuming the child is of an age and sufficient maturity to express his wishes, his desires as far as where he wants to reside;
  • The health, both mental and physical, of all involved;
  • Whether a parent has allowed the other parent to have “frequent, meaningful and continuing contact” with the other parent. (Note that an exception to this factor might apply if a parent is acting to protect the child from being a victim of domestic violence or child abuse or from witnessing an act of domestic violence.)
  • Whether a parent has acted in good faith in pursuing legal decision making authority or in making certain allegations against the other parent;
  • Whether there is the existence of domestic violence or child abuse according to Arizona Revised Statutes Section 25-403.03.
  • Whether an agreement regarding legal decision-making or parenting time was entered into by virtue of coercion or duress.
  • Whether one or both parents has been convicted false reporting, child abuse or neglect under Arizona Revised Statutes Section 13-2907.02.

Joint Legal Decision-Making, Sole Legal Decision Making and Parenting Time

People often struggle with understanding what the different types of legal decision-making authority (formerly child “custody”) options are and how they work.  (See this blog for the “21 Most Asked Questions About Custody (Legal Decision-Making) and Parenting Time.”) To gain a full appreciation for how these options work, it is always best to seek the advice of an attorney.  To assist you, however, we have compiled a summary of four of the issues often discussed during a divorce and/or child custody proceeding:

1. Joint Legal Decision-Making (joint child custody):

Shared or joint legal decision-making authority permits both parties to share in the medical, religious, educational and personal care decisions surrounding their children. No one party can unilaterally decide to make a decision for the child that falls within one of these spheres (outside of an emergency) without first consulting with the other parent.

 

All things being equal, this is the arrangement that the Court will most often try to implement.  It allows for both parents to be actively involved in the most intimate parts of their children’s lives.  It also requires a great deal of cooperation between the parents.  This arrangement is often very difficult for children who are a product of a high conflict divorce.  Judges, however, will often expect that parents put their personal differences aside so that they can better provide for their child’s well-being.

 

In cases where both parties are emotionally, mentally, and physically functional, they should maintain a goal of reaching a shared legal decision-making arrangement. (Click here to find out whether Arizona is a “Mother’s Rights” or a “Father’s Rights” state.)

2. Joint Legal Decision-Making (joint child custody) With Final Say:

This solution is a hybrid between traditional joint legal decision-making authority and sole legal decision-making authority.  In this arrangement, each party is given the same authority set forth above regarding joint legal decision-making.  However, if the parties cannot reach an agreement on a contested issue (within the realm of a major medical, religious, educational or personal care decision), one of the parties will be given the authority to have final say on that decision regarding the child.  

 

Although this sort of decision-making arrangement essentially gives the party who has final say the ultimate authority to make the decision on a disputed issue, that individual must make a good faith and conscious effort to consider the position of the other parent.

3. Sole Legal Decision-Making (sole child custody):

When a parent is awarded sole legal decision-making authority, he or she has the sole responsibility for making all of the significant decisions as it relates to his or her children.  A parent with this authority still should consult with the other parent before making a decision regarding the child’s medical needs, religious training, educational surroundings or personal care.  However, ultimately, that parent having sole legal decision-making authority has the final say.

 

Courts are generally hesitant to make such an award and may even look with skepticism toward a party who is asking for it.  Keep in mind, though, there are cases where such an award is appropriate.  In cases where domestic violence, drug abuse, alcohol abuse, child abuse or mental health conditions are at issue, the court will consider awarding sole legal decision-making. The court may also make such an award if it would be logistically impossible for the parties to share decision-making authority.

4. Parenting Time:

Parenting time refers to the actual amount of time per week, month or year that each parent is entitled to spend with his or her children.  This is a completely separate matter from legal decision making authority.  In fact, the law requires that even if one parent is awarded sole legal decision-making authority, the other parent is still entitled to parenting time (unless certain exceptions exist).  Parenting time schedules can often be as flexible and as creative as the parties want, especially if they reach agreements prior to trial. Again, when determining a parenting time schedule, the court will always consider what arrangement is in the child’s best interest.

 

Check out this blog to find out why the amount of parenting time you get might be more important than “winning” custody.

 

In addition to addressing legal decision making disputes in the context of divorce or separation, our team is equipped to handle matters involving:

 

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