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Child Custody Laws in Arizona

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Looking to learn about Arizona child custody laws? When parents divorce or separate, care for the child or children must continue. The court will decide a parenting plan concerning their welfare and health if the parents are unable to agree on a plan concerning the raising of the children. This frequently establishes which parent will have the role of primary caregiver and how much time they will spend with each of their parents.

In certain situations, relatives, unmarried parents or other persons who may or may not be directly related to the parents may petition the court for parenting time or custody. The court will always base their decision on the best interests of the child or children involved.

What is Legal Decision Making and Child Custody?

The legal term “custody” refers to a person’s right to make decisions about the welfare and care of a child, such as decisions regarding health care, education and religious training. Collectively, these rights are call “Legal Decision Making” custody rights.

When a parent has custody, they are frequently referred to as the “custodial parent.” It is often the case the child resides with the custodial parent for most of the time. The law does not favor one form of custody and the gender of the parent is irrelevant.

What is Parenting Time?

Also referred to as “contact,” “residential time” or “visitation” is a legal term to give the child the opportunity to spend time with one parent or the other.  If one parent retains sole Legal Decision Making rights, the other parent is referred to as the “non-custodial parent.”

Parenting time and custodial issues often arise when parents ask the court for a legal separation or a dissolution of a marriage. However, custody problems may also happen between parents who were never married or no longer reside together in the same dwelling.  These problems do not disappear once the divorce has been finalized. Parents sometimes disagree regarding healthcare decisions for the child, their education, where the child resides and how much parenting time and access to the child the non-custodial parent should have.

Who Decides Parenting Time?

If parents cannot come to an agreement between themselves, the Arizona legal system refers to the arising situations to the local superior court judges who are the only ones who may decide outstanding issues.  If you disagree with the lower trial court’s decision, you can appeal to a 3-judge panel at the Arizona Court of Appeals and then later to the Arizona Supreme Court if necessary.

Can The Court Grant Custody To More Than One Parent?

Yes, they can. As well as sole custody, the court can choose to grant joint Legal Decision Making and joint physical parenting time or both.

What Does Joint Custody Mean?

It means joint physical Parenting Time and joint Legal Decision Making. To obtain this the parents must agree and submit a written plan for parenting to the court for review.

Can More Than One Parent Be Granted Custody By The Court?

Yes. In addition to sole custody, the law allows the court to grant joint legal custody and joint physical custody, or both.

What Is Legal Decision Making?

Legal Decision Making is the status where one or both parents are responsible for making the major decisions regarding the child’s care or welfare. When sole Legal Decision Making is awarded to one parent, it is called “sole Legal Decision Making.” The law does not favor one form of custody over another.

What Is Joint Legal Decision Making?

When joint custody is granted by the court the same rights about the child’s welfare and care is afforded to both the parents and neither parent’s right takes priority of the other. In the child’s best interest,

the court may determine certain decisions would be the responsibility of one parent even on the occasions joint legal custody has been awarded. The court may also order legal custody that is joint without ordering joint physical Parenting Time.

If Parents Have Joint Legal Decision Making, Does the Child Live With Each Of Them For Equal Amounts Of Time?

Not always. Having joint Legal Decision Making doesn’t mean parents also have equal Parenting Time or joint physical custody. See section 25-403, Arizona Revised Statutes for further details.

What is Joint Parenting Time?

When joint Parenting Time is granted, the place where the child resides is shared between the two parents in a manner that the child will have equal contact and time with both parents. Joint Parenting Time may be granted in scenarios where parents share joint Legal Decision Making or where one parent is granted the sole Legal Decision Making of the child or children.

Does The Law Favor Joint Custody or Sole Custody?

The law in Arizona does not prefer one form of custody over another type. The court is also excluded from giving preference to a parent as custodian based on the gender of the parent.  The first presumption is that custody will be 50%/50% absent the parental fitness of a particular parent.  Parental fitness can be questioned based on criminal history, DUIs, domestic violence, or substance abuse in the past 12 months.

What Are The Procedures For Obtaining A Custody order?

There are only certain cases where a court may grant a custody order. For example, when parents are seeking a legal divorce or separation, a court determines custody.  Or, when parents request the court to alter or change a previous custodial decision that was made in a proper divorce or separation case. Custody may also be ordered when one unmarried parent initiates a court case to determine maternity or paternity of a child.

When a parent faces legal separation or divorce and a court case is started and they cannot agree on the issues surrounding the custody of a child, it becomes an automatic issue for the court to determine and decide. These court decisions are made in hearings when they grant temporary orders and in the final trial if the parents are still incapable of reaching a mutual agreement. Once a decree of divorce or legal separation has been granted, the court still has the authority to change or make modifications to an earlier established child custody order.  One cannot typically revisit custody orders until a year has passed from the earlier established custody orders.

How Can A Custody Order Made By The Court be Changed Or Altered?

Either parent can request the court modify a child custody order but must make the request in writing. However, it must be shown the change in the order is in the best interests of the child and that there has been a substantial and continuing change of circumstances since the original custody orders were issued.

The Clerk of the Superior Court receives the modification request and a filing fee is charged – however, there are limitations on requesting a modification. A request may not be filed for one year from the date of the earlier order unless there are circumstances endangering mental, physical, moral or emotional health. If there is an order for a form of joint custody, a modification can be requested at any time if there is evidence that spousal abuse, child abuse or domestic violence has occurred since the date of when the last child custody court order was granted. A parent must wait a period of six months before seeking a modification to the existing order if the request for a modification is that one parent has not obeyed the previous order of the court in a joint custody situation.

How Does A Court Make The Custody Decision?

In a custody dispute, the court, on occasion, will refer the parents to mediation services operated internally by the court system. This is an opportunity for the parents to reach an amicable agreement regarding custody and other related issues. Nonetheless, if the parents are unable to come to an agreement, the court will make the decision for them. The court will sometimes seek professional advice from specialists who will perform a family evaluation to offer a professional viewpoint regarding the custody issues. In certain situations, the court may also order an investigation to be an outside agency of social services. In every case, the court must determine custody in what will be the best interests of the child moving forward.

What Happens When Parents Agree On The Custody Decision?

It is usually for the best if both parents can agree on the decisions raising the children following a divorce or a legal separation. The parents’ mutual decision is usually accepted by the courts. However, the determination of the court must be made in the child’s best interests. After review of the terms of the agreement, the court has a duty required by law to examine the agreement made by their parents and in some cases may not validate it.

In Custody Disputes, What Does the Court Consider when Determining What is in the Best Interests of The Child?

Arizona state law provides guidance to the court by listing factors and considerations to take into account. these include:

  • The parents’ wishes.
  • The wishes of the child or children if they are sufficiently mature.
  • How the child interacts with each parent and any other children in the family unit.
  • The health of every person involved in the situation.
  • The child’s adjustment to school, community, and home.
  •  The parent who has provided care most in the past.
  • The parent who is most likely to allow the child to have meaningful and frequent contact with the other parent.

The court must also consider whether there is a history of domestic violence in the family, alcohol or drug abuse by a parent or other situation potentially endangering the mental, physical, moral or emotional health of the child. The court will make a presumption that an award of custody to a parent guilty of committing an act of domestic violence is contrary to the best interests of the child.

What If The Parents Desire To Have Joint Legal Decision Making?

When parents request joint Legal Decision Making, they also must submit a written parenting plan indicating how they will cooperate to care and raise the child or children. The court can order joint Legal Decision Making without the provision of joint physical custody. The court may also order joint Legal Decision Making even over the objection of one of the parents. As ever, the court’s decision will be made by serving the child’s best interests and the court’s decision reigns supreme.

How Does A Parent Obtain Child Support Once Custody has Been Decided?

The law says that the court must also decide what amount of child support should be paid by each parent under the Arizona Child Support Guidelines when the court has granted a custody order. It does not mean in a situation of joint Legal Decision Making that either parent no longer carries the responsibility to provide for the support of a child or children.

Can A Person Other Than a Parent Have Custody?

A person who stands in loco parentis to a child may ask the court for custody. To qualify as in loco parentis, the person must have been treated as a parent by the child and formed a meaningful parental style relationship with the child for a substantial amount of time. Also, one of the child’s parents must be deceased, the parents must be unmarried or there is a pending court case for divorce or legal separation, (see section 25-415, Arizona Revised Statutes).

How Can A Parent Obtain Medical School And Other Records Of Their Children After Divorce?

A person who stands in loco parentis to a child may ask the court for custody. To qualify as a loco parentis, the person must have been treated as a parent by the child and formed a meaningful parental style relationship with the child for a substantial amount of time. Also, one of the child’s parents must be deceased, the parents must be unmarried or there is a pending court case for divorce or legal separation, (see section 25-415, Arizona Revised Statutes).

When May A Parent With Custody Move From Arizona With The Child?

When both parents reside in Arizona, the parent who has physical custody must give 60 days’ notice to the other parent before the child may be moved a distance greater than 100 miles from the other parent or from the state. This period gives enough time for the nonmoving parent to request a hearing in writing to prevent the move.  Litigation is almost assured on relocation requests.

What If My Job Requires An Immediate Transfer In Less Than 60 Days?

In this case, you must have joint Parenting Time of the child and have the agreement of both parents or a court order that allows the movement of the child. If an agreement cannot be reached in less than 60 days, a moving parent must file a request with the court.

Why Is Parenting Time Important?

A child deserves a good relationship with both parents. The child should have the opportunity to spend time with each parent when the parents do not live together.  The law presumes that a maximum allocation of 50% custody should be awarded absent parental fitness issues.

What Parenting Time Rights Does A Parent Have?

State law entitles a parent reasonable rights for parenting time ensuring the child has continuing and frequent contact with the parent. However, parenting time can be limited or even denied if the child’s moral, mental, physical or emotional health would be seriously endangered by parenting time with a parent.

What Amount Of Parenting Time Is Right?

It depends on the child’s age and development. For example, with a newborn child, lengthy periods of visitation may not be appropriate in favor of more frequent and shorter visits. Ultimately the courts decide how much parenting time is important to the child and this can differ from county to county in Arizona. The Arizona Supreme Court also has published a host of Model Parenting Time Plans to assist parents in the establishment of age-related parenting time schedules. If the parents cannot agree, the court decides parenting time on a case by case basis.  For a copy of these plans click here.  https://www.azcourts.gov/portals/31/parentingTime/PPWguidelines.pdf

What is Reasonable Parenting Time?

This means the average amount of time spent with a child for most cases. Sometimes the term is used in parenting plans and even in court orders. it depends on the circumstances of each family, considering the development and age of the child. When described as “reasonable” it is tough to predict for how long or when parenting time periods should occur.

The parenting time order should be specifically written so it enables the court the ability to enforce the order if it is not followed and one parent decides to file a request for enforcement.

Is Parenting Time and Custody Related?

Yes, both terms mean the same thing.  As part of the custody order, the court will determine the appropriate amount of Parenting Time. Even if the parents share joint Legal Decision Making, the child may live primarily with one parent or share residential time with both parents, impacting the scheduled Parenting Time that has been ordered.

Do I Have To Start A Court Case To Have Parenting Time?

Parents have the freedom to agree on the best parenting time plan for their child.  Only if the parents cannot agree will court action be needed. If you recall, only the Superior Court can decide issues of parenting time and declare an order than can been enforced should disagreements arise.

How Do I Obtain A Legal Order For Parenting Time?

The court will only grant a parenting order in certain types of cases. Usually, parenting time is determined when the parents seek a divorce or legal separation or when parents ask the court for a change or alteration to custody orders be made. It may also be ordered with one parent starts a paternity case or following a voluntary acknowledgment of paternity.

Once a decree of divorce or legal separation has been granted, the court retains the authority to modify an earlier parenting time order. Either parent has to request in writing to the court what the parenting time should be and file it with the Clerk of the Superior Court – a filing fee will be due at the time of filing.

How Does The Court Make Its Decision For Parenting Time?

When there is a custody dispute the court may refer the parents to court mediation services giving parents the chance to come to a mutual agreement. However, if the parties are unable to agree, the court must take the decision. Factors the court will consider include:

  • The health and age of the child.
  • The time available to each parent away from their work and obligations.
  • The distance between the homes of the parents.
  • The school schedule of the child.
  • The suitability of living conditions in the home of each parent.

What If A Parent Disobeys A Court Order For Parenting Time?

When a parent commits a violation of the parenting time order, the other parent cannot deny them parenting time, stop the payment of child support or take other self-created action as a way of inflicting punishment on the other parent. However, the court should be asked to help. The parents must file a written request with the Clerk of The Superior court and pay a filing fee. A hearing may be scheduled if the matter cannot be resolved amicably.  Parents usually file a Motion To Enforce.

What Can The Court Do If A Parenting Time Order Is Disobeyed?

When a parent files a request for helping to enforce parenting time the state has an obligation to act quickly. The court has several remedies available, including:

  • Ordering immediate parenting time with the purpose of making up lost sessions.
  • Ordering the parent guilty of the violation to attend counseling or education classes.
  • Finding the parent in violation in contempt of court and ordering monetary sanctions and fees. (see section 25-414, Arizona Revised Statutes).

Can A Person Other Than A Parent Have Parenting Time?

In certain situations, Arizona law permits great-grandparents and grandparents to have parenting time rights if it is in the child’s best interests. In order to request parenting time, the parents of the child must have been divorced at least three months, one parent must be deceased or missing for three months or the child must have been born out of wedlock (see section 25-409, Arizona Revised Statutes). The law also provides a person who stands in loco parentis to a child may ask for parenting time. There are other requirements to be met before this request may be brought to the court (see section 25-415, Arizona Revised Statutes).

What Is Supervised Parenting Time?

On occasion to prevent harm to the emotional development or health of a child, a court will order a social services agency or qualified mental health professional to be involved with a family to ensure parenting time (and custody) orders are followed. The court may also order a third party to supervise or oversee the parenting time periods and in some cases, the exchange of the child is witnessed and supervised by a third party to diminish the conflict between the parents in front of the child.

After Legal Paternity Has Been Established How Are Custody And Parenting Time Decided?

Custody and parenting time can only be decided by the Superior Court based on the child’s best interests. If the court must establish paternity, they will also automatically decide custody and matters concerning parenting time. If paternity has been established voluntarily through the court, the Arizona Department of Health Services or the Department of Economic Security hospital paternity program, one of the parents have the responsibility to a file a specific request with the Superior Court to have parenting time or custody decided legally.

If The Parents Are Not Married, Should The Mother Have Custody?

The law presumes custody of the child belongs to the mother until legal paternity is decided. When a court legally establishes paternity, the law says that unless the court orders otherwise, the custody of the child should be with the parent who the child has lived with for most of the six-month period before paternity is established. Once the course has determined parenting time or custody, the decision is always in the child’s best interests. Therefore, the court may order either or both parents have custody if it is the best interests of the child to do so.

Read More About

Child Custody Battles Between Unmarried Parents

Child Custody Rights for Mothers

Child Custody Rights for Fathers

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

Speak With Our Child Custody Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Our child custody and guardianship attorneys in Phoenix and Scottsdale will advance your case with concern and personal attention and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. We shall represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

Child Custody, Child Custody & Parenting Time
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What are Mother’s Rights In Child Custody?

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When deciding a mother’s rights in child custody, the court must determine whether the parents of the child were married at the time of birth. Custody rules that apply to unmarried parents are different than those that are married depending on the jurisdiction.

Child custody cases are often complicated, but when the parents have the child or children out of wedlock, gaining parental rights can make the process of establishing child custody even more complicated.

When a couple is unmarried and has a child together, by law, the custody of the child is automatically granted to the mother. However, the biological father has options to pursue custody through the court system.

The biological father of the child can request to the court for custody of the child. As the initial and primary caretaker of the child, the mother initially has the right to make all decisions concerning the child’s welfare, including:

  • Who sees the child and for how long?
  • Where the child lives
  • Where the child goes to school
  • All medical decisions concerning the child
  • Public benefits concerning the child

The right to do anything else a parent with legal custody may decide, such as:

  • Academic Decisions (school district selections)
  • Religious Decisions
  • Personal Care
  • Medical Decisions
  • Any other important details concerning the child’s life.

Nevertheless, with the progression of same-sex rights, there is a growing number of non-traditional families that have custody challenges. In this case, it is plausible that the mother’s rights in child custody will comprise of two female mothers. One mother could be the child’s birth mother, and the other possibly could have donated an egg or just have been a supportive partner and parental figure.

As the emerging law in these cases is not set and clear like it is for heterosexual parents, it is harder to say what is relevant in deciding the custody rights for two mothers. Regardless, essentially the same basic principles will apply, and it may not necessarily affect the rights of the parents in this situation.

How Mother’s Rights Are Determined For A Child Born To Married Parents?

As for children who are born to married parents, many courts in the past went with the mother when awarding child custody.  As gender roles have changed and more women work outside of the home, these past presumptions no longer apply. These days, a lot of custody laws are gender neutral, meaning they won’t favor mothers over fathers.

Because of this, courts must take into consideration the child’s best interests when awarding custody. However, it is no easy matter to determine how to win custody as a mother, but it is good to keep in mind that most courts, even ones in other states, will focus on similar factors when considering the child’s best interests. These factors include:

  • The child’s emotional and physical health
  • How strong the bond of a parent-child relationship is with both parents
  • The stability of both parent’s home environment
  • The child’s ties to his or her school and community
  • The child’s relationships with other members of the family
  • Whether a parent has not paid their child support
  • Each parent’s propensity to provide for the child’s emotional and physical needs
  • Each parent’s devotion to actively parent the child
  • Any proof of any domestic violence or child abuse
  • What the child wants if the child is at a proper age.

In addition, it is important to realize the difference between physical custody and legal custody. Physical custody is defined as the parenting time a parent physically spends with the child. When a parent has physical custody of a child, they are responsible for making basic, day-to-day parenting choices.

But legal custody (Legal Decision Making) involves your right to make important decisions for your child, such as the decisions listed above, including education, health care, and religion. Even though one parent may have primary physical custody, both parents usually share joint legal custody. In fact, in a lot of states, joint legal custody is presumed to be in the best interests of the child.

Can Custody Orders From The Court Be Changed or Modified?

In child custody situations, it is in a parent’s best interest to maintain a polite and cooperative relationship with the child’s other parent, if they are still in the picture. It is vital to remember that any open bitterness toward the child’s other parent may hurt a parent’s custody claim or result in a decrease in a parent’s physical custody time.

Furthermore, once a custody order is finalized, the parent must follow each of the conditions stipulated in the order. However, court-ordered child custody decisions can be changed or modified if there has been a significant change in circumstances since the order was finalized. Courts can modify an existing child custody order when there has been a substantial change in circumstances, such as:

  • A parent breaches the existing child custody orders
  • There is proof of domestic violence or child abuse
  • One parent has moved, making the current child custody order unrealistic
  • One parent has lost the capacity to care for the needs of the child
  • When the child’s needs have changed, and the existing order is no longer in the child’s best interests

In order to change or modify an existing child custody order, the parent must first file a petition with the court. The process to modify an existing child custody order varies from state-to-state, and, thus, you will likely need to seek the assistance of an experienced and well-qualified family law attorney well versed in child custody to help you through the process.

Read More About:

Child Custody Battles Between Unmarried Parents

Child Custody Rights For Fathers

Family Law & Child Custody Information

How To Get Custody Of A Child In Arizona (Process)


Should I Hire A Mother’s Rights Attorney To Help With Obtaining Child Custody?

Child custody can be a very complex process. Although having an attorney is not always needed, particularly in cases where the child was born out of wedlock, and the father is no longer in the picture, hiring a knowledgeable family law attorney well versed in child custody may still be in your best interest.

If you are involved in a child custody struggle with the other parent of the child or are seeking to alter an existing child custody order, the process is much more intricate, and an experienced family law attorney is required.

A family law attorney that focuses child custody will be able to help you through the entire process of acquiring or modifying an existing child custody order, as well as help you build a strong case for custody if it goes to court.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

Sources

  1. LaMance, Ken. “Mother’s Rights in Child Custody.” LegalMatch Law Library, 22 Feb. 2018, www.legalmatch.com/law-library/article/mothers-rights-in-child-custody.html.

Speak With Our Mother’s Rights Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Our child custody and guardianship attorneys in Phoenix and Scottsdale will advance your case with concern and personal attention and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

Child Custody, Child Custody & Parenting Time
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Legal Guardianship in Arizona

In Arizona, an adult may obtain legal guardianship over a minor or an incapacitated adult with approval from a court. The person for whom a guardianship is established is known as the ward. Legal guardians have specific responsibilities including providing their wards with protection, support and care. Have questions about obtaining legal guardianship in Phoenix or Scottsdale Arizona? Contact Canterbury Law Group’s Guardianship Lawyers today.

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What Is Guardianship?

Guardianship is an appointment made by the court for a specific entity or individual to make personal decisions and provide care for an adult who is incapacitated or for a minor.

The title given to the person to who a guardian is appointed in the above process is known as a ward.

A ward is an adult who is unable to communicate or express reasoned decisions for themselves to protect their own interests and welfare because of some physical or mental condition. Similarly, minors are made a ward because they cannot legally take those decisions for themselves.

Who Serves As A Legal Guardian?

An entity (for example, a private fiduciary holding a license to act as guardian for someone and receives payment for such a service) or an individual may serve as a guardian of an incapacitated adult or a minor. Usually, a public fiduciary does not act as a guardian on behalf of a minor.

In the case of a minor, the court will appoint a person who will act in the minor’s best interests. A guardian may be nominated by a minor ward who is 14 years in age or older.

Any competent person may be appointed guardian for a person who is incapacitated. Although the law states a list of priorities for this appointment, the court may appoint someone with a lower priority if it is deemed to be in the best interest of the ward. The highest priority will go to someone who has already had guardianship in another county or state. Then from highest to lowest the priority includes the adult nominated by the ward (if the court thinks the ward has the capacity to make an intelligent decision), a person nominated in the ward’s power of attorney, the spouse of the ward, an adult child of the ward, the wards parent, a person who was nominated in a Will or any relative who the ward has lived with for more than six months.

Before being appointed as a guardian, the individual is required to provide background information to the court, such as previous occasions the person acted as a guardian on behalf of someone, any felony history, and other information.

Establishing Child Guardianship In Arizona

In the state of Arizona, a “Consent Guardianship” gives parents the written consent option to grant legal authority of a child to a non-parent. This also allows for the withdrawal of consent and the authority of Guardianship. Also, this also means a non-parent cannot petition for Guardianship if contested by one of the parents. In a situation like this, the non-parent may attempt to establish custody of the child through what is known as a “non-Parent Custody” position. Contact Canterbury Law Group today if you are seeking a Consent Guardianship in Arizona.

Who Grants Legal Guardianship?

In Arizona, the legal guardianship of a minor will be granted by a probate court or a juvenile court. You may think of probate courts as places that oversee proceedings of probate and administering wills. However, these courts also appoint guardians. It is a requirement of Arizona law that individuals wanting to obtain legal guardianship over a minor to give the minor child’s parents and/or custodian a 60-day notice before the filing of a petition for guardianship. Furthermore, an individual wishing to obtain legal guardianship over a minor child must have to prove to the court that the guardianship is in the best interest of the child. When petitioning for the guardianship of an adult, the petitioner also must file in probate court as well. He or she must notify the proposed conservators of the ward, any adult children and current guardians.

How Is Guardianship Appointed?

A guardian may be nominated by any interested person who files for the appointment of a guardian with a court. Additionally, it may be nominated by a Will. An adult who is incapacitated or any person concerned with the welfare of said incapacitated adult may also petition the court for a finding of incapacity and the appointment of a guardian. You can download the forms for obtaining the appointment of a guardian at: https://superiorcourt.maricopa.gov/ and then clicking on “self-service center” and on “forms.”

Notice of the place and time of the hearing has to be personally served on the potential ward and specified by statute given to the other persons, who include the alleged incapacitated person’s spouse, adult children, parents, anyone currently serving as a conservator or as a guardian or anyone who has custody and care of the person as long as anyone else who asked to be notified and if it is the case there is no one to give notice then the closest living relative will be given notice.

An adult ward named in a petition of guardianship must be represented by an attorney. The ward may also choose to use an attorney with who the ward has a professional and established relationship. Or the court may appoint an attorney on behalf of the ward. The court also must appoint a court investigator and a physician who must submit reports to the court prior to the date of the hearing, after conducting an interview with the potential adult ward. The potential ward is, of course, to be present in person at the live court hearing.

For a minor guardianship, there is not a need for a report from a physician, and no attorney is appointed on behalf of the minor. Additionally, the minor’s parents, in this kind of guardianship must give their written consent to the appointment of a guardian on behalf of their minor child.

In certain circumstances, the court may appoint a guardian temporarily for a specific period or a specific purpose.

When Can Guardianship Be Granted?

Guardianship may be granted by a probate court ifs the parent of a minor child left instructions in their last will and testament. This is known as a “testamentary appointment.” Furthermore, an individual may petition the court for legal guardianship in a case where the court has decided to terminate the parental rights of the ward’s proposed parents. A court may grant legal guardianship when an incapacitated adult requires supervision and care.

How Long Does Guardianship Last In Arizona?

Guardianship may last until a minor child reaches the age of legal adulthood which in the state of Arizona is 18 years old. Usually, if guardianship is objected to by the parents of a minor child and their parental rights have not been terminated, they may petition the court for a guardianship termination, even if they consented previously.  Guardianship is also terminated upon the death of the ward.

Guardian Duties

The responsibilities and powers of a parent are like those of a guardian. A guardian may make personal choices for the ward relating to living arrangements, social activities, education and the withholding of professional or medical care, advice and treatment. The guardian must always ensure the decisions that are made that serve the ward’s best interest. The guardian must always ensure the ward is living in an environment that is the least restrictive in which the ward can remain safe.

The guardian also must submit a written report to the court on an annual basis on the date on the anniversary of the guardian’s appointment. This report must contain information on the living and health conditions of the ward as well as an up to date report from the ward’s physician.

Can You Avoid Appointment Of Guardian?

Often if the adult has executed a valid Mental Health Care Power of Attorney, Health Care Power of Attorney for the end of life decisions, a Living Will, it may be that a guardianship is not needed. All these forms can be found under Life Care Planning at https://www.azag.gov/. An adult may only appoint an agent under the power of attorney if the adult is competent enough to understand the power of attorney documentation. Even if the adult successfully completes the living will and powers of attorney, they could still be subject to a guardianship proceeding. If someone thinks the person nominated to be the health care power of attorney is not acting in a way that is in the best interests of the incapacitated person, they can file a guardianship petition with the court.

Two Types Of Legal Guardianship In Arizona

There are two kinds of guardianship a person may petition the court for. However, they are different, and each has specific requirements to be met.

Title 8 Guardianship

  • You do not need the consent of both parents, but Title 8 Guardianships are more difficult to obtain.
  • Against the parents’ wishes, someone may apply for guardianship if they think it is not in the best interest of the child to remain with a legal parent (e.g. the parents are abusing drugs or alcohol or the children).
  • Juvenile court grants the guardianship.
  • These guardianships are permanent meaning the child will remain in your care until they are either 18 years old or the guardianship is revoked by a court order.
  • There will be a hearing when attempting to obtain a guardianship. There will be evidence and testimony involved if a parent disagrees with the guardianship. The court may appoint a person to represent the child and make recommendations to the court as to what the best interests of the child are.
  • These guardianships are also more difficult to terminate. Whoever wishes for a termination of the guardianship, must file a petition to do so. Once again, a hearing will be set, and testimony will be taken to determine if it is in the best interests of the child to terminate.

Title 14 Guardianship

  • Although easier to obtain, Title 14 Guardianships must have the consent of both legal parents. The only exception to this is if a parent is deceased or their rights have been legally terminated.
  • These are often used for short term guardianships. For example, if a parent is vacationing, out of town, working or during times of deployment abroad.
  • The probate court grants the guardianship.
  • The guardianship can be ended at any time by the legal parent. It is virtually impossible to prevent them from ending the guardianship.
  • The legal parent must request through the court revocation of the guardianship and a hearing is then scheduled.

What Type Of Guardianship Is Best For Your Situation?

Guardianships are often complex and complicated especially when a legal parent contests the guardianship. You will want to consider the situation carefully before filing for the guardianship of a child. If you are aware both parents want only a temporary guardianship and both are willing to give consent to this, you will want to file a Title 14 Guardianship.  Even with the consent of both parents but you require the guardianship to stay in place for an extended period, then you’ll want to file a Title 8 Guardianship. If both parents are non-consenting, you have no option and indeed are required to file a Title 8 Guardianship.  There are no guarantees that you will prevail at court.

How Long Does The Guardianship Process Take In Arizona?

This is dependent on the kind of guardianship you are filing and whether you have the consent of the parents or not. Both Title 14 and title 8 move very quickly indeed if both parents give their consent. It may even be completed within the time frame of just one month. However, if a parent does not give consent, understand there may well be multiple hearings scheduled together with evidence gathering and investigations. This can all take several months or a year to complete and assemble. Therefore, it is very likely you will not have guardianship immediately. In the case that you believe this is an emergency, you can request the court put in place a guardianship that is temporary until all the other steps are completed for it to become permanent.

Do You Need An Attorney To Obtain Guardianship?

If you have the consent of both parents and you are good at handling paperwork, you should be able to accomplish this on your own. However, if you are not especially detail-oriented and one of the parents is not consenting, it is highly recommended you speak with an attorney who has dealt with both Title 8 and Title 14 guardianships.

Non-Parent Child Custody In Arizona

In Arizona, Arizona Revised Statute §25-415 entitled “Custody by Non-Parent define who and how a non-parent can gain custody of a child that is not theirs. A non-parent can file a petition in the County Superior Court where the child permanently lives or is currently located. The petition must include detailed facts that support the Petitioner’s right to file the petition, and they have an obligation to provide notice to all the following:

  • The parents of the child.
  • A person with visitation rights or Court ordered custody.
  • The child’s Guardian ad Litem or guardian.
  • An agency or person that has physical custody of the child or who claims to have visitation or custodial rights.
  • Any agency or person who has previously appeared in the action.
  • The Court will summarily deny the petition unless it discovers the Petitioner pleadings establish all the following are accurate and true:
    • The person who files the petition stands in loco parentis to the child.
    • It would be “significantly detrimental” to the child to remain or be placed in the custody of either the living legal parents of the child who wishes to obtain or retain custody.
    • A Court of competent jurisdiction had not approved or entered an order concerning the custody of the child within one year before the person who filed the petition under this section unless there is a reason to think the child’s current environment may seriously endanger their physical, moral, emotional mental or moral health.
  • Or if any single one of the following applies:
    • One of the legal parents is deceased.
    • The legal parents of the child are not married to each other when the petition was filed.
    • And when there’s a pending proceeding for Dissolution of Marriage or for Legal Separation of the legal parents at the time of the petition being filed.

There is a “rebuttable presumption” available if a person other than the legal parent of the child is seeking custody that it is in the best interest of the child to award custody to the legal parents because of the psychological, emotional and physical needs of the child to be reared by the legal parent of said child. To rebut this presumption, the non-parent Petitioner must chow “clear and convincing evidence” that the awarding of custody to the current legal parent is not in the best interests of the child. Additionally, the Superior court may grant a person who stands as loco parentis to a child. This would include grandparents and great-grandparents, who meet the requirements of: Arizona Revised Statute §25-409 – this assures “reasonable visitation rights” to the child on a finding that it is in the child’s best interest to receive visitation and that any of the following are true:

  • One of the legal parents has been missing for at least three months or is deceased.
  • The legal parents of the child are not married to each other at the time of the filing of the petition.
  • There is a proceeding that is pending for Dissolution of Marriage or the Legal Separation of the legal parents at the time the petition was filed.

A grandparent or great-grandparent who stands in loco parentis to a child may want a proceeding for Visitation Rights with a child. They must file a Verified Petition in the county where the child has been found or is a permanent resident. Click Grandparent’s Rights to learn more about the options available for Grandparents Visitation. For a free initial consultation contact us by email or call The Canterbury Law Firm for an appointment, today!

*This information is not intended to be legal advice. You can contact Canterbury Law Group today to learn more about your personal legal needs.

Sources

  1. State Bar of Arizona. “A Guide to Guardianship and Conservatorship.” State Bar of Arizona, www.azbar.org/legalhelpandeducation/consumerbrochures/aguidetoguardianshipandconservatorship/.
  2. Redsteer, Andrine. “Legal Guardianship in Arizona.” LegalZoom Legal Info, 21 Nov. 2017, info.legalzoom.com/legal-guardianship-arizona-21520.html.
  3. “Quick Guide to Guardianship Types in Arizona > My Modern Law.” My Modern Law, 12 Jan. 2018, mymodernlaw.com/quick-guide-to-guardianship-types-in-arizona/.

Speak With Our Guardianship Lawyers in Arizona

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Contact Canterbury Law Group today if you need an experienced child custody lawyer or guardianship lawyer in Phoenix or Scottsdale, Arizona to help with your case. Our experienced family law attorneys will work with you to achieve the best outcome for your situation. Call today for an initial consultation! 480-744-7711

Child Custody, Family Law, Family Law Attorney, Family Law help in Scottsdale
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How Much Does a Child Custody Lawyer Cost?

The average cost of a child custody lawyer is $21,500 according to LegalMatch [1]. Child custody lawyer fees ranged from $3,000 – $40,000 in the US. *Disclaimer – This is not an actual quote. If you need an experienced child custody lawyer contact Canterbury Law Group to start your initial consultation.

Child custody cases can be one of the most unpleasant situations parents and their children will face., In addition to the impactful and emotional costs, it also can be financially costly. Usually, depending on the type of the custody dispute, a child custody dispute can cost anywhere from $3,000 upwards of $40,000.

What Factors Cause Child Custody Costs to Vary?

Although attorney’s fees incurred in a child custody dispute are undeniably a sizable portion of the cost, there are other factors which shall dictate your total expenses incurred. Below you will find a general lay out of the costs usually associated with these types of disputes.

1) The Type of Custody Dispute – Whether a child custody dispute is intensely contested will likely be the biggest cost factor. Normally, if one party is determined to fight for sole custody or is being uncooperative, the dispute will generate depositions, filing numerous motions, multiple court appearances, the hiring of child psychologists and other experts or professionals.  The bottom line is that these litigations take, time and money and the fees can add up quickly. .

Furthermore, while attending a final trial will always be the most expensive option, private 5-way mediation is not without costs. Private mediators are usually paid anywhere between $250 – $450 per hour.

2) The Hiring of Expert Witnesses – Regardless of how intense your litigation might be, the parties may need to go through a comprehensive family custody evaluation. These require stringent tests, one on one interviews, and professional evaluations, and can cost anywhere from $2,500 – $10,000. In addition, the family evaluator may be subject to deposition, or the other party may elect to hire a competing evaluator.   Sometimes a more cost effective option is to pursue a Limited Family Assessment ($2,500) or a Parenting Conference ($600).

3) Attorney’s Fees – Absent an extreme disparity in the parents’ incomes, each party is usually solely responsible to pay their own legal and attorney’s fees.. However, the judge does have the power to order attorney’s fees, and may do so if they find that:

  • There is a significant discrepancy in the party’s financial status; or
  • One party is incapable to afford adequate representation for themselves

4) Miscellaneous – There are other costs that many people do not even consider when hiring legal counsel.  Court filing fees can range from $100 to $400 just to get a case started.  Process servers can costs $100 to $150 for each service completed.

What Ultimately Dictates a Child Custody Lawyer’s Fees?

The primary reason that child custody litigation expenses vary wildly are:

  • How cooperative the each of the parties are;
  • How the lawyer’s structure their fees;
  • How many expert witnesses or consultants are retained;
  • How many motions or depositions are conducted;
  • Whether the parties are willing to mediate or if one party simply forces a trial.

As addressed above, whether a child custody dispute is ” amicable ” or not can have an immense impact on the overall cost of the dispute. In addition, how the lawyer and experts choose to bill the client can also have a huge influence total expenses incurred.

Usually, child custody lawyers either bill in the form of a flat fee or by the hour. If a lawyer charges a flat fee, expect to pay a minimum of $3,500 – $7,500. Just because their fee is low, it is in no way suggestive of a lower quality legal representation. It is simply an evaluation of what work the lawyer is expected to do dictated by the case complexity.

Therefore, if a custody battle is going to be quick and painless and only requires mediation, or just a few court appearances and papers filed, a lawyer will most likely require a lower flat fee. In contrast, where the case may necessitate several court appearances before a judge, arguing complicated legal issues, but can still eventually be resolved in a relatively civilized manner, the lawyer is likely to charge a higher flat fee.

How Much Does A Child Custody Lawyer Charge Per Hour?

Legal hourly rates will vary considerably based on the experience and skills of the lawyer.  A brand new lawyer straight out of law school may spend 5 hours for a legal task that a seasoned lawyer would complete in 1 hour.   Expect to pay anywhere from $195 – $500 an hour for a lawyer’s time. Bear in mind, a lower hourly rate in no way indicates the quality of representation, but simply what the local market has decided what that lawyer’s professional time is worth.  A lower hourly rate should not be the primary driver in your selection of legal counsel.  To the contrary, you might be better served by a higher priced lawyer knowing that your matter is in capable hands and will be performed precisely and with experience and care.

As noted above, lawyers who work via an hourly rate will also typically want the payment of an up front retainer. This retainer will cover a definitive amount of that lawyer’s time. After the retainer is exhausted, a client is expected to refresh the retainer back to its original level to keep the lawyer engaged.

With an hourly fee arrangement, it is not unusual for monthly legal bills to start to get into the $5,000 – $15,000 range quickly. Thus, this type of billing structure is more common where the parties cannot agree to a visitation or custody plan, one party is trying to move the child out of state, or any other complex and contested child custody dispute.

Which Fee Structure Is More Preferable?

One fee structure is not necessarily better than the other, and every case is unique.. A seasoned family law attorney will understand that. It is always a good idea to do your homework and learn more about what you are going to be paying for. Knowing the essentials of a child custody lawyer’s fee structure and how it works is the beginning to starting a transparent dialogue about any fee structure, and how they are planning on consuming their legal time to secure the overall best outcome for you and your child.

*This information is not intended to be legal advice. You can contact Canterbury Law Group today to learn more about your personal legal needs.

Sources

Izzi, Matthew. “How Much Will a Child Custody Lawyer Cost.” Attempted Murder Lawyers | LegalMatch Law Library, 15 Aug. 2018, http://www.legalmatch.com/law-library/article/how-much-will-a-child-custody-lawyer-cost.html.

Child Custody Consultations in Scottsdale

The Canterbury Law Group should be your first choice for when you need the best Scottsdale child custody lawyer. Our experienced family law attorneys will work with you to achieve the best outcome for your situation. You can trust the firm to fiercely represent you, so you can move on with your life. Call today for an initial consultation!

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