Tag Archives: Mother’s Rights

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.

Learn how a parent’s move can affect custody and visitation, when custodial parents need permission before taking the child to another location, and how judges decide whether to allow a planned move when the parents can’t agree.

Court-ordered custody arrangements can work well for years, especially when both parents live close to each other. But what happens when a parent wants to move with the child to another state, another area in the same state, or even another country? These “move-away” cases are among the most difficult types of custody disputes, because they often involve a conflict between the custodial parent’s right to move freely and the right of both the other parent and the child to maintain their relationship.

Overview of Child Custody Orders

In order to understand the issues involved in move-away cases, it’s important to know some of the basics of child custody laws. When parents decide to divorce, they will need to make legal custody arrangements that meet their children’s best interests. Parents who were never married but are separating (or never lived together) may also seek custody orders.

Child custody arrangements include both legal and physical custody. In most states, it’s the default preference for parents to share joint legal custody—meaning they make the important decisions together about their child’s health, education, and welfare. Physical custody usually refers to where the child lives most of the time. But it’s also becoming more common for parents to share joint physical custody, so they can both spend a significant amount of time with their child.

If parents can’t agree on custody (often called a “parenting plan”), a judge will have to make these decisions for them. Whether the custody arrangements result from the parents’ agreement or a judge’s decision, the court will issue legal custody order that spells out exactly how the parents will divide custody rights and responsibilities.

Who Is the Primary Custodial Parent?

Even when parents share joint physical custody, one parent is typically designated as the primary custodial parent. In a typical joint custody situation, for example, the child lives with the primary custodial parent on school weeknights but spends weekends, some holidays, and at least part of school vacations with the other parent (who might be called the “noncustodial parent” even when that parent shares physical custody).

Changes to Joint Custody Orders When a Parent Moves

Parents may ask a judge to make changes in existing custody orders, but they usually must show that there has been a substantial change of circumstances to justify the modification. As with all custody-related decisions, the judge will decide whether the modification would be in the child’s best interests. The parents may agree with each other about new custody arrangements, but a judge must approve their agreement to make it part of a new order.

When the primary custodial parent plans to move with the child, the other parent may request a custody modification—for instance, to seek primary physical custody or to ask for a change in the visitation schedule. And sometimes, parents who don’t have primary custody—but share joint custody—might request a change in the existing parenting plan based on their own planned relocation (more below on that issue). The judge may consider the relocation as a substantial change of circumstances, especially if it will significantly affect one parent’s ability to maintain a meaningful relationship with the child (more below on what goes into the judge’s decisions in move-away cases).

When Custodial Parents Need Permission to Move With a Child

In many situations, custodial parents must get permission—from the other parent or a judge—before they are allowed to move with a child out of the state or a certain distance away from their current residence. Sometimes, these restrictions are in state law. Other times, they’re in the custody orders (typically part of a final divorce decree) or in temporary restraining orders issued during a divorce proceeding.

State Laws Restricting Relocations With Children

Some states have laws that require parents to give advance notice and get permission from the other parent or a judge before moving a child. Some of these laws apply only to moves out of state, while others also apply to moves of a certain distance within the state. For example:

• In Minnesota, whenever the noncustodial parent has parenting time under the custody order, the custodial parent may not move the child’s residence to another state without a court order or the other parent’s consent. (Minn. Stat. § 518.175 (2022).)
• In Nevada, parents with primary physical custody must get permission from the other parent or the court before relocating with the child outside of Nevada or somewhere in the state that’s far enough away to “substantially impair the ability of the other parent to maintain a meaningful relationship with the child.” (Nev. Rev. Stat. § 125C.006 (2022).)
• In Florida, whenever parents want to move with their children at least 50 miles from their principal residence, they must get written consent from the other parent (or anyone entitled to time-sharing with the child). Without that consent, parents must file a court proceeding to seek permission from a judge. (Fla. Stat. § 61.13001 (2022).)
• In Arizona, whenever parents have joint legal custody or shared parenting time, and both of them live in the state, a parent who wants to relocate the child—whether out of state or more than 100 miles within Arizona—must give the other parent at least 45 days’ advance notice. The nonmoving parent may then file a petition with the court to prevent the move. (Ariz. Rev. Stat. § 25-408 (2022).)

These state laws generally spell out the factors judges must consider when deciding whether to allow the relocation (more on that below).

Relocation Restrictions in Custody Orders or Agreements

Even in states where the laws don’t explicitly require permission before moving with a child, judges in some states may include similar restrictions in divorce judgments or custody orders.

Typically, when parents have signed a divorce settlement agreement—which includes their agreements on custody and coparenting arrangements—the agreement is made part of their divorce judgment. But when the agreement includes provisions on what will happen if the noncustodial parent moves with the child, those provisions won’t necessarily control the outcome of future legal proceedings if they violate state law—for instance, if the agreement calls for an automatic change in custody without requiring a judge to determine that the modification would be in the child’s best interests.

Temporary Restraining Orders During Divorce Proceedings

After you’ve filed for divorce, it’s common for the court to issue “temporary restraining orders” (TROs) that are meant to maintain the status quo in terms of both parents’ access to your child or children. Typically, these TROs prohibit either spouse from taking a child out of the state without the other parent’s permission.

Often, one or both of the spouses will request TROs. But in some states, standard TROs take effect automatically as soon as a spouse files divorce papers. In California, for example, one of the initial divorce forms (the summons) must include an automatic temporary restraining order (ATRO) that prohibits either spouse from removing their child out of the state—or even applying for a passport for the child—without the other parent’s advance, written consent or a court order. (Cal. Fam. Code § 2040 (2022).)

Parents could face serious consequences if they move a child in violation of a law or court order.

What If Custodial Parents Move a Child Without Getting Necessary Permission?

Parents could face serious consequences if they move a child in violation of a law or court order, including:

• contempt orders, which could result in fines, jail time, or both
• losing primary physical custody if the other parent requests a custody modification based on the move, or
• criminal charges, such as for parental child abduction or kidnapping.

If you plan to move—or even travel—with your child, make sure you know whether you’ll need permission. Check your custody order (which may be part of the divorce judgment) for details about any requirements. And if your divorce case is still ongoing, make sure you carefully read all of the paperwork to see if it includes restrictions on moving or traveling with your child.

Criminal Charges for a Custodial Parent Who Took Her Child Out of State Without Permission

In an extraordinary relocation case, a California mother was charged with parental child abduction and kidnapping after she took her daughter with her to visit family in the Philippines while her divorce was ongoing. Her defense lawyer, Stacy Barrett (who’s now a Nolo editor), explained that the mother had temporary legal and physical custody while her divorce was ongoing. The father had only supervised visits with the girl after credible allegations that he’d been touching her inappropriately. But under the ATROs issued in all California divorces, neither parent was supposed to leave the state without court permission.

While the mother was gone, the father went to court and got permanent legal and physical custody of his daughter. The mother was arrested as soon as she returned to the U.S. Although the jury ultimately acquitted the mother, Barrett believes the case might have easily gone the other way. “My client could’ve been sentenced to 13 years in prison.”

Can Parents Agree to a Planned Relocation With Children?

If the noncustodial parent consents to a custodial parent’s move, both parents may also agree on a new custody arrangement that considers the new location and provides the noncustodial parent enough of time with the child. They’ll both need sign a written agreement (sometimes known as a stipulation).

Even when the parents agree to a custody modification, however, they’ll need to get a judge’s approval. If the agreement is in the child’s best interests, the judge will approve it and make it part of a new court order.

When parents can’t agree, they may hire a coparenting counselor or custody mediator to help them find a solution that works for both of them and the child. But if that doesn’t work, and state law or the existing custody order requires a judge’s permission for the planned moved, the moving parent will have to go to court and file legal paperwork (a “petition” or “motion”) asking the judge to grant the request to relocate.

How Do Judges Decide Whether to Allow a Custodial Parent to Relocate?

As with all custody disputes, judges must follow state law when deciding whether to allow a custodial parent to move with the children, or whether to grant the nonmoving parent’s request to modify the existing custody order. State laws on relocations and child custody vary a lot, so the exact circumstances that the judge must consider will depend on where you were divorced (or where your previous custody order was issued).

Generally speaking, judges will weigh the potential benefits and disadvantages of the move in terms of the child’s best interests. For example, a planned move might increase a child’s overall quality of life as a result of:

• the custodial parent’s increased earnings from a new job or educational opportunity in the new location
• closer proximity to the custodial parent’s extended family, who can help with child-care and support, or
• the custodial parent’s new marriage, which could provide the child with the benefits of a two-parent family.

On the other side of the equation, the judge will consider possible negative effects of the planned move on the child’s well-being—especially reduced contact with the noncustodial parent.

Different states place more or less weight on the custodial parent’s right to move with a child. In some states, the law presumes that a custodial parent has the right to change a child’s residence unless the other parent provides evidence to convince a judge that the move would harm the child’s welfare. In other states, the parent who wants to move must prove that it would be in the child’s best interests. And still other states don’t tip the scales for or against the moving parent.

State laws also list specific factors that judges must consider when they’re deciding whether to allow a parent to move with a child or whether to grant the other parent’s request to change custody because of the move. Typically, these factors include:

• the effect of the move on the child’s ability to continue to maintain a close, meaningful relationship with the other parent despite the distance, including whether the parents have the resources to afford long-distance visitation
• whether the custodial parent has a good reason for needing to relocate or is simply trying to frustrate the other parent’s ability to have parenting time with the child
• the noncustodial parent’s reasons for resisting the move—for instance, whether they’re genuinely concerned about the potential harm to the parent-child relationship or are simply hoping to get a reduction in child support
• the child’s need for stability in other relationships, such as at school, with friends, and in religious groups, and
• the child’s preference in the custody dispute, as long as the child is mature enough to have a reasonable opinion about the move.

If an alternating weekend or frequent visitation schedule is impossible after either parent’s move, judges will typically award the noncustodial parent extended school break, holiday, and summer vacation visits.

What Happens When a Noncustodial Parent Wants to Move?

Noncustodial parents usually don’t need to get approval for a move from the court or the child’s other parent unless they wish to relocate with the child.

But does a noncustodial parent give up visitation rights after relocating? In most cases, no. If it’s feasible to continue the current custody and visitation arrangements after the move, both parents will need to abide by the orders. However, the court doesn’t expect a custodial parent or a child to follow a custody order that no longer benefits the child or that burdens the family.

For example, suppose your custody order allows you parenting time (visitation) with your child every other weekend. If you relocate 45 minutes away, you can probably continue with that arrangement because it wouldn’t be disruptive or harmful to your child. However, if your planned relocation will be far enough away that it would be impossible or very difficult (or expensive) to continue the current arrangements for parenting time, you must act before moving or risk losing time with your child.

If you’re a noncustodial parent who’s planning to relocate, you should first speak with the custodial parent and try to work out a new, mutually beneficial arrangement for parenting time. Once you agree, you may submit your written agreement to the court for approval. As long as the agreement benefits the child’s best interest, the judge will generally approve it.

If the custodial parent won’t agree to change the current custody and visitation order, you’ll need to file a motion with the court to change the order. Ahead of the court hearing, you should prepare a detailed visitation schedule that addresses how you and the other parent will handle transportation expenses and remote communication (like regular video calls). The judge will evaluate the case, including the reasons for relocation, and create a new visitation agreement if that would serve the child’s best interests.

If an alternating weekend or frequent visitation schedule is impossible after either parent’s move, judges will typically award the noncustodial parent extended school break, holiday, and summer vacation visits.

Parents must understand that, until they agree (in writing) to a new arrangement or the court changes its orders, they must both comply with existing orders.

Can You Move Your Child Out of State When There’s No Custody Agreement or Order?

What if you don’t have an existing custody order (including a temporary order during a divorce)? Can you move with your child? And if your kid’s other parent wants to relocate with the child, can you do anything about it? The answers to those questions depend on the circumstances.

You’re generally free to move with your child if you aren’t married to the other parent, the child has been living with you, and neither parent has filed a custody proceeding. However, keep in mind that both parents (whether married or not) have parental rights over their children, with or without a court order. For example, that means if you’re a single mother and you move with your child, the father could file a legal proceeding to establish parentage (paternity) and seek custody or visitation—especially if he’s been seeing the child regularly and wants to keep that up.

You should also be aware of potential legal problems when you take or keep a child out of the country without the other parent’s consent. If your child has been living in the U.S., and you take the child to another country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the other parent may file a legal proceeding to get the child back. These “Hague Convention” cases often arise when marriages are in trouble and one parent takes the kids to stay with family in another country (or keeps them there beyond the time of a planned visit) while contemplating divorce. Learn more about international child custody and abduction laws.

Should I Hire an Attorney for a Move-Away Dispute?

If you and your child’s other parent can’t agree about a relocation on your own or in mediation, you’ll almost certainly need to hire an experienced family law attorney to help you through the legal process. Move-away cases are one of the most challenging and complex custody disputes. With so much at stake, you should get help from a professional who can represent your interests and protect your rights.

Source

https://www.divorcenet.com/states/nationwide/custodial_parent_removing_child

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]

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

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]

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