Category Archives: Family Law

In the last few years, Arizona has completed an overhaul of custody laws. Essentially moving to a model based on “parenting time” and “legal decision making” as opposed to the terminology previously utilized for custody issues. In January 2013 this move took effect and signified a shift of emphasis towards making joint parenting a priority as opposed to the older legislative model that tended to use every other weekend style custody arrangements and that Mothers would no longer be favored over Fathers automatically as the parent with primary custodial responsibility.

Although there has been a change in the statutory language and terminology used, child custody determination still use legal decision making in an effective manner. Primarily, the determination of parenting time and legal decision-making reflect which of the parents have the right to make certain decisions on behalf of the child or children as well as how much time the individual patent gets to spend with the child or children.

The following discusses how Arizona courts make their determinations of parenting time and legal decision-making.

Determining Legal Decision Making

Based on the best interests of the child, Arizona decided to replace legal custody with legal decision making authority. This means legal decision making allows parents to make important decisions regarding the life of a child or children. These can include, personal care, education, healthcare, and religion. The courts will consider “all factors that are relevant to the child’s physical and emotional well-being”, as outlined by  A.R.S. §25-403. – when making a determination of which parents will have this authority.

There are many factors which courts consider that are specifically mentioned in this particular Arizona statute including:

• The adjustment of the child or children to their school, community and home environments
• The child or childrens’ relationships and interactions with siblings, parents and other people who can have a significant effect on the best interest of the child or children
• The physical and mental health of the parents
• An examination of the parent and child or children’s past, present and potential future parental relationships
• If the child or children are of a suitable age, their personal wishes of who they wish to primarily reside with
• A determination of whether child abuse or domestic violence has been a feature of the home life of the child or children

In summary, the court examines many factors when the court determines which parent should have the authority of legal decision-making. Once everything has been given due consideration, the court will decide to give sole legal decision-making authority to one parent or joint legal decision making authority to both parents. Most similar in form to being granted sole custody, sole legal decision-making authority means one parent is granted the authority to take the major decisions regarding the life and welfare of the child or children. Conversely, both parents will have an obligation to work together if joint decision making is granted by the court.

Legal Decision-Making Considerations

The other primary part of custody is known as “parenting time.” This determines how much time a parent is authorized to physically spend with their child or children and decisions are made by the court using the principles of the “best interests of the child.” A.R.S. §25-403.02 states that parents in Arizona have to submit a mandatory plan of parenting if both parents are unable to come to an agreement regarding the time each parent will spend with their child or children. Because the courts will always make a decision based on the child’s best interest, it is worth noting the determination of joint legal decision-making may not necessarily justify equal parenting time. In a similar vein, the parent who lacks the authority to make decisions is still entitled to a meaningful and productive relationship with the child or children. Only in the case where a parent is not in a fit state to be with their child or children (often for reasons such as child abuse or substance abuse), it is very likely both parents will be granted enough time by the court to continue developing a meaningful relationship with their child or children. As ever, the actual time will be determined by what is in the best interests of the child or children.

Non-Considered Factors

Many people think the female parent will be automatically awarded as the primary caretaker of the child or children. This is simply no longer the case in Arizona.  The parent’s enthusiasm and relationship with the child are paramount. The wealth of the parent or their socioeconomic status has almost nothing to do with the Court’s decision.

Parents only have to provide adequate and safe accommodation for the child or children. The court will not always grant custody to the parent who happens to be more affluent. Both parents should be able to provide comfortable living conditions, cleanliness and the ability to provide for the healthcare of the child. Regarding religion, it is important to be reminded of the fact the court will always act in the best interests of the child or children. Providing the religion of the parent does not cause harm to the child or children – the religion of the parents are not grounds for parental duties disqualification.  Put another way, Mom goes to her church on her days, and Father does or does not attend his venue with the children on his days.

Other Important Considerations

• In Arizona, family law courts have the ability to grant both joint and sole custody. It is more common for sole custody to be granted when the parties cannot reach a mutual agreement
• If you use unsubstantiated or false allegations of neglect or abuse against the other parent – it will be used against you by the courts in the process of decision-making; be very careful what you allege in your papers, they are tendered under penalty of perjury
• The more mature or older the children or child will be increasingly considered (e.g interviewed)  in the legal process
• Remember the parent who is more open to negotiation and communication with the other parent is often more likely to obtain primary custody or the majority of the children or child’s guardianship

When both parents submit a written plan for parenting and are open to communication and negotiation, the court will grant joint custody on the occasions it is in the best interests of the child or children. Families settle on a successful custody situation in more than 95% of the cases outside the court system in an amicable manner. However, if you are unable to make a mutually successful achievement on a child custody agreement, talk to a family law attorney to investigate your options in achieving resolution via litigation.

Sources:

Hg.org, www.hg.org/legal-articles/how-is-child-custody-determined-in-arizona-29809.

To win child custody essentially means that you are happy with your custody circumstances and the custody agreement is in the best interest of the child or children. How this happens depends on the situation. It could possibly mean that you get sole custody of your child, that you share custody with the other parent, or that the judge agrees to your proposed parenting plan, etc.

In the end, how do you win custody? You work on your own or with the other parent to create a custody agreement that meets the needs of your child. After that, you work with the other parent or on your own to get the court to agree to your plan.

To create a winning parenting plan to present in court, call Canterbury Law Group today.

Create a winning parenting plan

Your parenting plan demonstrates how you and the other parent will continue to care for your child now that you are separated or getting a divorce.

A satisfactory parenting plan has:

• A defined parenting schedule that shows when the child spends time with each parent
• Details about how the parents will make decisions for the child
• Specifics about expenses and finances
• Parenting requirements and rules about raising the child
• Any other information you may want to add

To produce a winning parenting plan, you must customize it, so it suits the needs of your child and fits your unique circumstances.

You can draw out your plan on your own, work closely with the other parent to develop it, and/or hire an attorney or legal professional to assist you.

Negotiate a plan with your child’s other parent

The best way to win custody of your child is to work with your child’s other parent to make a custody agreement both of you approve of. This helps you avoid a drawn-out, costly court battle and makes your agreement more effective, and is only beneficial for the child.

It doesn’t matter if you and the other parent disagree about custody, it is still worthwhile to try and arrange an agreement. In order to do this, you will both have to set aside personal differences and focus on what is in the best interest of the child.

Here are some recommendations to help you when meeting with the other parent:

• Prepare example parenting plans and parenting time schedules to show your ideas
• Write down the thoughts and concerns that you want to go over before you meet
• Be flexible about your parenting agreements
• Hear out the other parent’s ideas and concerns
• Set aside any personal differences with the other parent
• Think of your child when you work out your parenting agreement
• Don’t talk about divorce issues or other outside issues during the meeting
• Bring your work schedule and the child’s school schedule
• Talk to your child about what they want in the agreement (if your child is old enough)
• Seek mediation or counseling if needed
• Get enough sleep the night before you meet, maybe each bring a friend to reduce tension
• Allow multiple meetings (don’t try to discuss too much at once)
• Take a break if things get strained, you can always try again later

Record your actual custody circumstances

You may find it beneficial to track the actual time, so you know how to prepare your custody plan.

Track your actual parenting time, so you know how your actual time correlates to your scheduled time. This can help you define your custody and visitation schedule and know if the schedule is being upheld.  For example, if one parent works nights and weekends, creative scheduling is going to be required to see the children during normal waking hours, when they are typically in school.

You can also keep a custody log book where you write notes about what happens during your parenting time. You can use your book to communicate with the other parent or keep it for your records.

Tracking your parenting time and keeping a log book helps you win custody by making sure your plan is the correct one for you and your child. It also helps each parent follow the plan.  The log book can also be critical for “going back to court” after your original plan is in place.

Present a winning case in court

If you and your child’s other parent are incapable of coming to an agreement about custody arrangements, you will go to family court, and a judge will determine the final parenting time arrangements.

To win in family court, you must develop a parenting plan and show the judge how that plan will benefit your child. It might be a good idea to hire an attorney to come up with your plan and represent you in court.  Things can and will get complicated.

You can represent yourself and still win custody, you will just need to prepare an appropriate plan and present it very well.

Attend custody mediation to win your case

If both parents cannot work out a custody agreement, you should consider going to custody mediation with a third party professional.

In custody mediation, you and the other parent will meet with an impartial third-party mediator who can help you create your agreement. The mediator will help you as you make decisions for your plan and help you work out your disagreements.  The mediator is usually a retired family law judge or attorney well versed in custody issues.

Some states require that parents go to mediation first before actually going to court. You may also have the alternative of getting free or discounted mediation through your court or state. If mediation isn’t offered in your court, you can pay for mediation privately.  Each parent usually pay 50% of the meditor’s fees.  You can also bring your attorney to mediation.

Mediation is successful for a lot people, and if you can co-author your parenting plan in mediation, you will be happy with your plan and you both win your case.