Category Archives: Family Law

Primary physical custody is a legal term used in family law to describe a custody arrangement in which a child primarily lives with one parent, who is then considered the “custodial” or “primary custodial” parent. The other parent, known as the “non-custodial” parent, usually has visitation rights or parenting time rather than daily residence with the child.

Here are the key aspects of primary physical custody:

1. Living Arrangements

• In primary physical custody, the child lives with the custodial parent most of the time. This parent provides the child’s main residence, handles day-to-day care, and manages routines like schooling, meals, and bedtime.

2. Decision-Making (Legal Custody)

• Primary physical custody differs from legal custody, which refers to the right to make significant decisions about the child’s life (like education, health care, and religious upbringing). It’s common for parents to share legal custody, even if only one parent has primary physical custody. Shared legal custody allows both parents to contribute to major decisions affecting the child’s future.

3. Visitation or Parenting Time for the Non-Custodial Parent

• The non-custodial parent typically has scheduled time with the child, often through a structured visitation schedule that may include weekends, holidays, and summer breaks. Courts encourage a schedule that promotes meaningful contact between the child and both parents, as long as it serves the child’s best interests.

4. Benefits and Consistency for the Child

• Primary physical custody can provide a stable home base for the child, which is often in their best interest, especially if they are young or need consistency for school, medical care, and social activities. It can reduce the back-and-forth of shared physical custody arrangements, which may be challenging for young children.

5. Impact on Child Support

• Since the custodial parent bears more day-to-day expenses for the child’s care, the non-custodial parent may be ordered to pay child support to help with costs related to food, housing, schooling, and other essentials.

6. Modification of Primary Physical Custody

• If there are significant changes in circumstances (like relocation, change in the child’s needs, or change in the parents’ ability to care for the child), the custody arrangement can be modified. Courts prioritize the child’s best interest, so any modification must align with their emotional, physical, and developmental needs.

Primary physical custody is an arrangement where one parent provides the main home and daily care for the child, while the other parent generally has visitation or scheduled parenting time. This type of custody aims to provide stability, while typically allowing both parents to remain involved in the child’s life.

Benefits of Primary Physical Custody

Primary physical custody can provide several benefits for the child, the custodial parent, and even the non-custodial parent. Here are some of the main advantages:

1. Stability and Consistency for the Child

• Primary physical custody ensures the child has a single, stable home base, which can be particularly beneficial for their emotional and psychological well-being. With one primary residence, children often have a more consistent routine around school, meals, bedtime, and social activities, which can reduce stress and improve their sense of security.

2. Enhanced Academic and Social Development

• Having a primary home base often makes it easier for children to stay on track with schooling, extracurricular activities, and friendships. This consistency helps minimize disruptions and can lead to better performance in school and more stable friendships, as they don’t have to frequently adjust to new environments.

3. Stronger Parent-Child Bond with the Custodial Parent

• Since the child spends most of their time with the custodial parent, they have more opportunities to develop a close relationship with that parent. This parent is often the one who handles day-to-day activities, bedtime routines, homework, and care, helping to build trust and emotional security.

4. Clear Structure and Predictability

• The custodial arrangement offers the child clear expectations and predictable routines, which are especially beneficial for younger children. A predictable structure can foster self-discipline, security, and healthy habits as they grow.

5. Reduced Travel and Transitional Stress

• In a shared physical custody arrangement, children may feel stressed by frequently moving between two homes. Primary physical custody limits these transitions, allowing the child to settle into a single environment, which can be less tiring and confusing, especially for younger kids.

6. Simplified Decision-Making for Day-to-Day Care

• With primary physical custody, the custodial parent typically has more autonomy over the day-to-day care and decisions for the child. This setup can make it easier to manage routines and respond quickly to the child’s needs, without frequent coordination between parents.

7. Support for the Non-Custodial Parent’s Role

• With a set visitation or parenting schedule, the non-custodial parent still plays a significant role in the child’s life without needing to provide daily care. The arrangement can help non-custodial parents build a predictable and meaningful relationship with the child, allowing them to create memorable experiences during designated visitation times.

8. Financial Predictability

• Because primary custody often involves a child support arrangement, it provides the custodial parent with a structured financial contribution from the non-custodial parent. This support helps the custodial parent meet the child’s needs more consistently.

9. Smoother Conflict Management

• Since the child lives primarily with one parent, the potential for conflict over daily matters can be reduced. Having defined roles (custodial and non-custodial) and responsibilities can make co-parenting smoother, particularly if both parents are committed to reducing friction.

10. Flexibility for the Non-Custodial Parent

• The non-custodial parent often has more flexibility with their work and personal life, as they are not responsible for daily child-rearing. This can make it easier to establish a visitation schedule that fits their lifestyle while still allowing them to maintain an important presence in the child’s life.

Primary physical custody can provide stability, routine, and a consistent home environment for the child, supporting their emotional, academic, and social development. It can also simplify the custodial parent’s responsibilities while allowing the non-custodial parent a supportive, consistent role in the child’s life.

What Are My Rights With Primary Physical Custody?

If you have primary physical custody of your child, you have certain rights and responsibilities regarding your child’s upbringing and daily care. Here’s a summary of the rights that typically come with primary physical custody:

1. Right to Make Daily Decisions for Your Child

• As the primary custodial parent, you have the authority to make day-to-day decisions for your child. This includes choices related to meals, bedtime, discipline, activities, homework, and other aspects of their daily routine. These decisions generally don’t require consultation with the non-custodial parent unless they impact the child’s welfare significantly.

2. Right to Provide a Stable Home Environment

• You have the right to provide a consistent and stable home base for your child. This means they primarily live with you, and you control the environment, structure, and daily routines within your home.

3. Right to Receive Child Support (if Ordered)

• If the court ordered child support, you have the right to receive payments from the non-custodial parent to help cover costs related to the child’s care, such as housing, food, schooling, clothing, and other essential needs.

4. Right to Make Routine Health and Educational Decisions

• You generally have the right to make routine decisions related to your child’s healthcare (e.g., dentist appointments, check-ups) and education (e.g., homework routines, involvement in school activities). However, for significant decisions—like major medical treatments or changing schools—legal custody rights come into play, and consultation with the other parent may be required if you share joint legal custody.

5. Right to Manage Daycare and Extracurricular Activities

• As the primary custodial parent, you can typically decide on daycare arrangements, after-school programs, and extracurricular activities that fit your schedule and the child’s needs. You may not need approval from the non-custodial parent for these activities unless otherwise specified in your custody agreement.

6. Right to Modify Routines as Needed

• You have the flexibility to adjust daily routines, bedtimes, and activities to best suit your child’s needs and changing schedules. As the custodial parent, you can adapt the routine as your child grows or if their needs change.

7. Right to Handle Emergency Situations

• In case of emergencies, you can make quick decisions for your child’s welfare without waiting for the non-custodial parent’s input. This includes health emergencies or situations that require immediate action. If you share joint legal custody, you should inform the other parent afterward.

8. Right to Request Modifications to the Custody Order (if Necessary)

• If your or your child’s circumstances change significantly (e.g., relocation, change in the child’s needs, or change in the non-custodial parent’s involvement), you have the right to request a modification to the custody arrangement through the court. The court will always prioritize the child’s best interests when considering modifications.

9. Right to Set Boundaries During Parenting Time with the Non-Custodial Parent

• Although the non-custodial parent has visitation rights or parenting time, you have the right to request that they adhere to the agreed-upon schedule and respect boundaries that align with the child’s well-being. Courts support co-parenting, so setting boundaries should not interfere with the other parent’s relationship with the child but can help maintain structure and stability.

10. Right to Enforce Court Orders and Custody Agreements

• You have the right to enforce the terms of your custody and visitation agreement, ensuring the non-custodial parent follows the schedule, returns the child on time, and adheres to any specific guidelines regarding parenting time. If the other parent violates the order, you have the right to address this legally through the court.

Additional Responsibilities

While primary physical custody gives you certain rights, it also comes with important responsibilities:

• Fostering a Positive Relationship with the Other Parent: Courts expect primary custodial parents to encourage a healthy relationship between the child and the non-custodial parent.
• Respecting Visitation Schedules: It’s your responsibility to facilitate the child’s relationship with the non-custodial parent by respecting and supporting visitation schedules.
• Providing for the Child’s Needs: As the primary custodial parent, you are responsible for meeting your child’s physical, emotional, and educational needs daily.

With primary physical custody, you have the right to make everyday decisions for your child and provide a stable, secure home. However, significant decisions (like medical care or education changes) may require the involvement of the non-custodial parent if you share legal custody. You also have the right to request court support for enforcing the custody agreement if needed and to request modifications if circumstances change. Balancing these rights with your responsibilities helps create a supportive and stable environment for your child.

The most crucial component of your custody case is the evidence. What you think is best for your child is supported. Whether the judge judges in your favor depends on the evidence you provide in court.

Evidence gathering should begin right away, even before you file a case. The best person to advise you on the best proof for child custody is a lawyer, but the following will set you up for success.

In family court, what constitutes acceptable evidence?

The evidence you can use in court is known as admissible evidence. The specifics of your case and your court’s standards of evidence will determine whether evidence is admissible. Finding out what you are permitted to provide will require some investigation on your part.

Evidence that is not admissible in family court is known as inadmissible evidence. Hearsay, for instance—repeating what you believe someone else said—is typically not acceptable. Additionally, evidence that is not directly relevant to a disputed issue is frequently excluded.

The majority of courts allow the kinds of evidence that are covered here.

Evidence kinds that work well in custody situations

It should be clear from your evidence that giving you custody is what’s best for the child. You can use the following kinds of evidence to bolster your argument.

Official records

To demonstrate your parenting fitness, collect official documentation:

Tax returns and pay stubs as proof of income to demonstrate your financial stability; medical records to demonstrate your child receives appropriate medical care; school reports to demonstrate your child’s grades, which frequently reflect their home life; and police reports of any incidents involving the other parent.

Individual records

You are the creator of your personal records. They can demonstrate how you contribute to your child’s upbringing and your current interactions with the youngster and the other parent.

The following documents can support your case:

A suggested visitation plan that outlines the times you would like to switch the child; if you currently have a schedule, a note of parenting time that was skipped or refused; and an expense report that demonstrates how much you spend on your child’s necessities
Printouts of your co-parent’s texts, emails, and other correspondence and a phone call log demonstrating your attempts to communicate with your child
The court will want to know if you and your child have a history together. Videos and images can be used to illustrate this.

Here are some instances of what graphics can demonstrate:

The child has a secure environment, and you spend time with them, such as when you take them on vacation.
You go to the kid’s extracurricular activities.
You try to maintain the other parent’s involvement in the child’s life.

On social media, parents could unintentionally share facts that could harm their case.

Posts on social media may reveal:

Parental conduct (e.g., frequent parties) ● The relationship between parents ● Parental relationship ● Income (e.g., posts about large purchases)
You must demonstrate that social media posts are real and unaltered if you intend to use them as proof. In whatever screenshots you take, make sure the date and the person’s profile name are visible.

Journals: You can use a custody journal to show how you relate to both the other parent and the child.

You can record in your journal:

● Circumstances when you don’t think the other parent behaved in the child’s best interests ● Your interactions with the other parent ● The amount of time you spend with the child ● The child’s condition ● The child’s attendance at doctor’s visits ● The behavior of the child

Testimony of witnesses:

Witnesses give your accusations context. List trustworthy witnesses together with their names and contact details.

Witnesses have the following options for weighing:

● Out-of-court depositions (a witness testifies outside of court while answering questions under oath.)
● Live witness testimony: During the trial, you or your attorney will question both your and the opposing side’s witnesses.
● The child’s private testimony (a judge speaks with the youngster to learn about their emotions)
● Character reference letters (The relationship between you and your child is influenced by teachers, coaches, and others).
● Evaluations of custody (A specialist prepares a report after researching the family.)

Plans for the child’s future

The judge will look for evidence that you have considered the future of your child. You can demonstrate this by:

Create a visitation schedule and parenting plan.
Describe your plan to maintain the other parent’s involvement in your child’s life.
Demonstrate that you can modify your work schedule to suit your child or that you have childcare arrangements for them.
How to arrange the proof in a custody case
You must arrange your child custody lawsuit when you have the greatest evidence.

To arrange your documents, think about creating a custody documentation binder. Important papers, notes, and other evidence you intend to use in court are kept in a trial binder.

For the judge, the witness, and the opposing party, make three copies of each document. To keep each document safe, place it in a clear plastic sleeve. To arrange your documents according to the following, use section dividers.

Child custody evaluations are a critical component in legal disputes over the custody and care of children. These evaluations are conducted by mental health professionals, usually psychologists or social workers, who are trained in assessing family dynamics and child welfare. The primary goal is to determine the best interests of the child and make recommendations to the court regarding custody and visitation arrangements. Here is a detailed guide to understanding child custody evaluations:

Purpose of Child Custody Evaluations

1. Best Interests of the Child: The foremost objective is to ensure that the custody arrangement serves the best interests of the child, focusing on their health, safety, and welfare.
2. Parental Capabilities: Evaluations assess each parent’s ability to provide for the child’s physical and emotional needs.
3. Parent-Child Relationship: Evaluators examine the strength and quality of the relationship between the child and each parent.
4. Environmental Stability: The evaluation considers the stability and suitability of each parent’s living environment.

The Evaluation Process

1. Initial Interviews: The evaluator conducts interviews with both parents, individually and sometimes together, to gather background information and understand their perspectives.
2. Child Interviews: The evaluator may interview the child, depending on their age and maturity, to hear their views and observe their interactions with each parent.
3. Observations: Evaluators often observe the child’s interactions with each parent in their home environment to assess the nature of the relationships.
4. Psychological Testing: Sometimes, psychological tests are administered to parents and children to gain deeper insights into their personalities and mental health.
5. Collateral Contacts: The evaluator may speak with teachers, doctors, family members, and others who have significant interactions with the family.
6. Review of Documents: Relevant documents, such as school records, medical records, and previous court orders, are reviewed.

Factors Considered

1. Parenting Skills: Ability to meet the child’s needs, provide structure, and discipline appropriately.
2. Mental and Physical Health: The mental and physical well-being of both parents and how it impacts their parenting.
3. Child’s Needs: Special needs, preferences (if age-appropriate), and overall well-being.
4. History of Abuse or Neglect: Any history of domestic violence, abuse, or neglect is critically important.
5. Parental Cooperation: Willingness and ability of each parent to support the child’s relationship with the other parent.

The Report

1. Comprehensive Summary: The final report includes a detailed summary of the evaluation process, observations, interviews, and findings.
2. Recommendations: The evaluator provides recommendations for custody and visitation arrangements that they believe are in the best interest of the child.
3. Submission to Court: The report is submitted to the court and is typically used as a key piece of evidence in making custody determinations.

Pros and Cons

Pros:

• Informed Decisions: Provides the court with a professional, neutral assessment of the family situation.
• Child-Focused: Emphasizes the best interests and welfare of the child.
• Detailed Analysis: Offers a thorough examination of family dynamics and parenting capabilities.

Cons:

• Intrusive: The process can feel invasive and stressful for both parents and children.
• Time-Consuming: Evaluations can take several months to complete.
• Expensive: The cost of evaluations can be significant, potentially placing a financial burden on the family.
• Subjective: Despite professional training, some level of subjectivity and bias can influence the evaluator’s recommendations.

Preparing for an Evaluation

1. Be Honest: Provide accurate and truthful information.
2. Cooperate Fully: Be respectful and cooperative with the evaluator.
3. Document Interactions: Keep detailed records of interactions with your child and the other parent.
4. Focus on the Child: Emphasize your commitment to the child’s best interests.

Child custody evaluations play a vital role in helping courts make informed decisions about custody and visitation arrangements. Understanding the evaluation process, the factors considered, and how to prepare can help parents navigate this challenging aspect of custody disputes. It is often beneficial to seek legal advice and support to ensure that the evaluation process is fair and comprehensive.

The cost of child custody evaluations can vary significantly based on several factors, including the complexity of the case, the geographic location, the evaluator’s qualifications, and the specific services required. Here’s a breakdown of potential costs and factors that influence them:

Average Costs

1. Basic Evaluations: For a straightforward custody evaluation, costs typically range from $1,500 to $6,000. This includes initial interviews, home visits, and basic assessments.
2. Comprehensive Evaluations: More in-depth evaluations that involve extensive psychological testing, multiple interviews, and collateral contacts can range from $5,000 to $15,000 or more.
3. High-Conflict Cases: In cases with significant conflict, allegations of abuse, or complex family dynamics, costs can exceed $20,000.

Factors Influencing Costs

1. Evaluator’s Qualifications: More experienced and highly qualified evaluators (e.g., psychologists with specialized training in child custody evaluations) generally charge higher fees.
2. Geographic Location: Costs can vary based on the cost of living and standard rates for professional services in the area. Evaluations in major metropolitan areas tend to be more expensive than in rural areas.
3. Complexity of the Case: Cases involving multiple children, high conflict, or allegations of abuse/neglect require more time and resources, increasing the overall cost.
4. Extent of Evaluation: The scope of the evaluation, including the number of interviews, home visits, psychological tests, and collateral contacts, impacts the total cost.
5. Court Requirements: Some courts have specific requirements for evaluations, which can affect the cost. Court-ordered evaluations may also include additional fees for court appearances and reports.

Additional Costs

1. Court Appearances: If the evaluator is required to testify in court, there are additional fees, which can range from $200 to $500 per hour, including preparation and travel time.
2. Psychological Testing: Comprehensive psychological testing can add several hundred to several thousand dollars to the total cost.
3. Travel Expenses: If the evaluator needs to travel significant distances for home visits or interviews, travel expenses may be added to the cost.

Payment and Financial Assistance

1. Payment Plans: Some evaluators offer payment plans to spread the cost over time, which can help manage the financial burden.
2. Sliding Scale Fees: In some cases, evaluators may offer sliding scale fees based on the parents’ income levels.
3. Court Assistance: In certain jurisdictions, the court may assist with evaluation costs for low-income families or may have a list of evaluators who offer reduced rates.

Conclusion

Child custody evaluations are a significant investment, but they can play a crucial role in determining the best interests of the child in custody disputes. It’s important for parents to understand the potential costs involved and explore options for managing these expenses, including discussing payment plans or seeking court assistance if necessary. Always consider consulting with legal counsel to navigate the financial and legal aspects of custody evaluations effectively.

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.

A Guardian ad Litem (GAL) is a person appointed by the court to represent the best interests of a child or an incapacitated adult in legal proceedings. The term “ad litem” is Latin for “for the suit” or “for the proceeding,” indicating that the guardian is appointed specifically for the duration of the legal case or proceeding. Here’s an overview of the role and responsibilities of Guardians ad Litem:

Role of Guardians ad Litem

1. Advocate for Best Interests:
   • The primary role of a Guardian ad Litem is to advocate for the best interests of the child or incapacitated adult they represent. This involves conducting an independent investigation into the circumstances of the case and making recommendations to the court based on their findings.
2. Independent Investigation:
   • Guardians ad Litem conduct thorough investigations to gather information about the child’s or incapacitated adult’s situation, including their living environment, family relationships, educational needs, and any other factors relevant to the case.
   • This may involve interviewing the child, parents, caregivers, teachers, healthcare providers, and other individuals involved in the child’s or incapacitated adult’s life.
3. Court Reports and Recommendations:
   • Guardians ad Litem prepare written reports detailing their findings and recommendations for the court. These reports may include information about the child’s or incapacitated adult’s preferences, the quality of their relationships with family members, and any concerns or issues that need to be addressed.
   • Guardians ad Litem may also testify in court and present their recommendations to the judge during hearings or trials.
4. Monitoring and Oversight:
   • In some cases, Guardians ad Litem are appointed to monitor compliance with court orders or to oversee visitation arrangements, particularly in cases involving custody disputes or allegations of abuse or neglect.

Appointment Process

1. Court Appointment:
   • Guardians ad Litem are appointed by the court, typically in cases involving child custody and visitation disputes, allegations of abuse or neglect, or matters involving incapacitated adults.
   • The court may appoint a Guardian ad Litem on its own initiative or in response to a motion filed by one of the parties involved in the case.
2. Qualifications:
   • Guardians ad Litem are often attorneys or social workers with experience working with children or vulnerable adults. Some jurisdictions may have specific requirements or training programs for individuals seeking to serve as Guardians ad Litem.
3. Impartiality and Neutrality:
   • Guardians ad Litem are expected to remain impartial and neutral in their role, advocating solely for the best interests of the child or incapacitated adult they represent, regardless of the preferences of the parties involved in the case.

Guardians ad Litem play a crucial role in protecting the rights and interests of children and vulnerable adults in legal proceedings. By conducting thorough investigations, advocating for the best interests of their clients, and making recommendations to the court, Guardians ad Litem help ensure that decisions are made with the well-being of the child or incapacitated adult as the primary consideration.

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/.