Written by Canterbury Law Group

Child Custody Laws in Arizona

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

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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. 480-240-0040 or [email protected]

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