Children aren’t mature enough to have the same rights as parents, but they have certain protections. These ensure the best interest of the child.
The right to state their opinion
In some states, the court must consider the child’s custody preference when making the final custody decision. The judge usually figures this out by interviewing the child in private. The older the child, the more weight is given to their opinion.
The court won’t always go along with what the child says, even in states like Georgia, where children 14 or older can generally choose whom they want to live with. The judge must rule in line with the child’s best interest. So if a child wants to live with a parent simply because that parent lets them stay up late, the judge will only go with that if that parent is the most competent.
Children can testify during a trial if they have information that can impact the verdict. This is rare since testifying can be distressing for a child. Instead, the judge usually speaks to the child in private or appoints a professional like a custody evaluator to assess the situation.
The right to legal representation
Children have a right to their own legal representation if necessary.
Guardians ad litem represent the child’s best interest. They are usually reserved for cases involving abuse or neglect, but some states assign them in all child custody cases.
Attorneys ad litem represent what the child wants. Typically, they’re appointed on a case-by-case basis, but there are courts that require their involvement for specific case types.
These professionals speak for the child in court and advocate for their rights. Also, they might conduct a short investigation that includes interviews with each parent and a viewing of the child’s potential homes.
The right to safety, education and healthcare
Children have the right to live in an environment free of substance abuse, violence and other dangers. This is why child welfare agencies can intervene when parents put a child in danger. This right also impacts whether a parent receives physical custody.
The right to have a relationship with both parents
Research has shown that children fare better when both parents are part of their lives. For this reason, courts seek to make custody rulings that let the child build a relationship with both parents. Even if a parent isn’t fit for custody, protections like supervised visitation ensure the child can safely be around them.
Parents must also protect this right by allowing visits and not interfering with the other parent’s time with the child. Otherwise, they could lose custody.
The right to financial support
So long as the child is under 18, parents must financially support them.
When parents separate, one typically pays child support to the other. The payer is generally the noncustodial parent or the parent who sees the child less often. If the parent fails to pay support, they could faces penalties ranging from fines to jail time.
Best Interest of the Child
When a court is asked to decide on issues of custody, they will use the best interests of the child standard to do so. In other words, the primary goal of the court isn’t necessarily doing what either parent wants but instead is doing what is best for the children involved.
Courts can consider many factors to determine the best interests of the child including:
- The recommendations made by a mental health professional after a custody evaluation
- The preference of the child if they are old enough to have an opinion
- Who has been the child’s primary caregiver (if either parent has)
- The ability of each parent to provide a stable, loving home
- Whether the child has any special needs
- The emotional ties the child has with parents, siblings and other household members
- The parents’ ability to provide connections with support networks, including extended family members
- The mental and physical needs of the child
- The presence of domestic violence in the home
The specifics vary by state. Courts do not express a preference for parents of a particular gender (such as defaulting to giving custody to a mother). Instead, the goal is to look at the big picture and see which custody arrangement would best ensure the child’s stability and security moving forward. And, in most cases, this means keeping both parents in the child’s life.
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.
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.
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*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.