Arizona Child Custody Questions

Arizona family law attorneys provide answers to frequently asked questions with regards to Arizona child custody and Arizona custody laws.

How is custody defined in Arizona?

Arizona no longer uses the term custody, effective Jan. 1, 2013; the term is now legal decision-making.

Therefore, Arizona courts will no longer determine who will receive custody but rather who will have legal decision-making authority over the children.

Who will receive legal decision-making authority for child(ren)?

The court can order both parties to have legal decision-making authority or it can order one party to have legal decision-making authority.

In deciding who will receive legal decision-making authority the court will consider the best interest factors specified by statute. The best interest factors are:

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.

A.R.S. 25-403

What is joint legal decision-making? What is sole legal decision-making?

Joint legal decision-making requires both parents to work together collectively to make decisions regarding the childhood rearing of their children.

Sole legal decision-making allows one parent to make decisions regarding the childhood rearing of their children without consulting the other parent.

If the parents have joint legal decision-making, does anyone pay child support?

Joint legal decision-making does not equate to zero dollar child support order. Child support is based upon a shared income model. Thus, the income of both parents is considered to first determine the amount necessary to cover the basic needs of a child.

Even if you have joint legal decision-making, child support will be calculated taking into consideration that the parties have joint legal decision-making. The court will also consider other factors such as who pays for heath insurance, the parenting time schedule, extra education expenses, etc.

Can a parent refuse to allow parenting time if child support is not paid?

No, child support and parenting time are two separate issues. A parent is not permitted to make a unilateral decision to refuse parenting time previously ordered by the court.

At what age can my child decide which parent to live with?

Generally, the court will not allow a minor to decide where they will live necessarily. The court will consider the best interest of the child when determining where your child will reside.

There are several factors the court will consider. The court may consider the wishes of your child as a factor. The court will also consider the age and maturity level of your child.

Can third parties receive legal decision-making authority or visitation rights for my child(ren)?

Arizona allows a person other than a legal parent to petition the superior court for legal decision-making authority or visitation.

To petition for the court legal decision-making authority, the third party would have to show that:

1. The person filing the petition stands in loco parentis to the child.

2. It would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making.

3. A court of competent jurisdiction has not entered or approved an order concerning legal decision-making or parenting time within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

AND

4. One of the following:

a.) One of the legal parents is deceased.

b.) The child’s legal parents are not married to each other at the time the petition is filed.

c.) A proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

The court may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests and that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months.

2. The child was born out of wedlock and the child’s legal parents are not married to each other at the time the petition is filed.

3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.

4. For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

See A.R.S. 25-409

What is a parenting plan, and do I need one?

A parenting plan is a legal document that outlines the rights and responsibilities of each parent.

Generally, it includes information regarding the parenting time schedule, holiday parenting schedule, education of the children, child support, division of medical expenses, extra-curricular expenses, etc.

Parenting plans are essential post dissolution, so yes, you need one.

What can I expect from temporary orders?

During the pendency of your case you can file motions for temporary orders to address certain issues that cannot wait until the end of your case.

Temporary issues generally include, but are not limited to, parenting time, legal decision-making authority, child support, attorney fees, spousal maintenance, etc.

When will legal decision-making authority be decided?

Legal decision-making authority can be decided on a temporary basis pending your dissolution of marriage.

A more long-term decision will generally be made at the end of your dissolution, if not agreed upon prior.

When can I modify an order for legal decision-making and parenting time?

You can ask the court to modify an order of legal decision-making or parenting time if:

  1. The prior order of the court regarding custody has been in place for one year;
  2. You have reason to believe that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health, you may file a motion to modify along with an affidavit expressing your belief for the court’s consideration;
  3. At any time after a joint legal decision-making order is entered, there is evidence that domestic violence, spousal abuse or child abuse occurred since the entry of the joint legal decision-making order.
  4. Six months after a joint legal decision-making order is entered, a parent fails to with the provisions of the order.

See A.R.S. 25-411

What if we cannot agree on a legal decision-making?

If you and your spouse cannot agree on legal decision-making, you will have a trial in which evidence will be presented by you and your spouse for the court to consider and make a decision regarding legal decision-making.

What is an ex parte order?

An ex-parte order is a decision made regarding a party without a hearing and is generally based upon a sworn affidavit of the party requesting the order without notice to the other party.

What is parenting time?

Parenting time is the time awarded to parent to spend with his/her child.

Can a judge order supervised visitation or no visitation?

Yes, the judge can order supervised visitation or no visitation if the judge finds that such an order is in the best interest of the child.

Will my child need to appear in court?

It is unlikely that your child would have to appear in court to be examined by counsel while in front of both parents.

What is more common is an in camera interview by the judge, if requested by either party. An in-camera interview is a private interview with the judge and your child regarding your case. Neither the parties nor the attorneys will be privy to the interview.

In order for your child to have an in-camera interview they must be able to clearly articulate facts or have a clear understanding of what they are being asked.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Protection Act (PKPA) established national standards for the assertion of child custody jurisdiction within the United States.

The Act does not explicitly state which is the proper state in which an initial child custody matter should be filed, but provides that the assertion of child custody jurisdiction by any state without consideration of the Act’s requirements does not provide a resulting “full faith and credit” in other states.

In addition to its provisions for full faith and credit, the PKPA explicitly provides that a state cannot modify the child custody decree of another state without complying with the terms of the PKPA.

Thus, if a state modifies a previous child custody order without compliance with the PKPA, the modification is not entitled to full faith and credit in other states.

In 1999, Congress enacted an amendment that explicitly includes “visitation” rights in the definition of “custody” rights covered by the Act.

Accordingly, the determination or modification of either legal custody, residence or visitation rights must comply with the PKPA or risk a lack of enforcement in other states.

What if my wife tries to move the kids out state?

When you file for a Dissolution of Marriage or Legal Separation, the court will automatically but a restraining order in place preventing either party from leaving the State without an order of the court or agreement of both parents.

If I have legal decision-making, will I receive child support?

Most likely yes, however the amount will vary depending on the circumstances of the case.

Do courts favor the mother over the father?

Arizona statutes are written in a manner in which on their face and application there is no favoritism in custody matters. All decisions are made based on the facts provided for a given case.

With that being said, the social mores often dictated by society can have an impact on custody matters.

Can I collect my own evidence to use if my custody case goes to court?

Yes, the more you collect the more your attorney doesn’t have to, which of course saves you money.

However, it is important to consult your attorney about the kind of evidence that is required and the proper way of acquiring it.

What should I know before a custody trial?

Everything! You need to know whom you are going to call to testify on your behalf and the purpose of their testimony.

You need to know what exhibits you will be admitting as evidence and why they are important to bring before the court.

You need to know who the opposing party is going to be calling to testify and why.

You need to know what exhibits they are going to attempt to admit as evidence and analyze the possible purpose of said exhibits.

You need to know the law and how it applies to you.

This is by no means an exclusive list; there are number of things which could come up during a custody matter in which you would need full knowledge of.

But lastly, the most important thing you must know is what you want to get across to the court.

Do I need to use a Guardian Ad Litem?

A Guardian ad Litem is an attorney appointed by the court to represent the best interest of the minor child(ren) and report what they believe is in the child(ren)’s to the court.

The GAL will meet with both parents and the child(ren) and see how the child(ren) interact with parents individually.

Typically, a GAL will generate a report and file it with the court. A GAL’s work is paid for by one of the parties or both depending on the circumstances and costs vary from county to county and on the amount of work performed.

Though the GAL’s report is not dispositive of the court’s decision concerning custody or shared parenting, courts do often give a great deal of weight to the GAL’s opinion. Whether you need one depends upon the details of your particular case.