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Child custody cases involve minor children. Minor children include any child under the age of 18. Child custody is complicated in Arizona. Here are a few important things to know:
Navigating Custody in Arizona
Custody in Arizona can be complex. It’s not as simple as which parent gets the kids. Child custody in Arizona is made up of two parts: legal decision-making authority and parenting time. In this blog post, I want to talk about what legal decision-making authority means and how parenting times works in our State.
The first part of custody is legal decision-making authority. Legal decision-making authority is a parent’s power to make important decisions about their kid’s life. The typical examples of legal decision-making authority include medical, educational, or religious decisions. The importance of legal decision-making authority changes with a kid’s age. Parents aren’t making the same decisions for an infant that they are making for a teenager.
There are three standard legal decision-making arrangements in Arizona:
Joint legal decision-making authority is when the parents share the power to make important decisions about the children’s lives. This is the standard in Arizona. Courts want the Parties to have an equal say in their kids lives. In order for joint legal decision-making authority to work, the parents must actively communicate with one another. One parent cannot unilaterally make important decisions without the other parent’s input.
Sole legal decision-making authority is when only one parent has the power to make decisions about the children’s lives. They do not have to consult with or receive input from the other parent when making decisions for the kids. Sole legal decision-making authority is not the norm. In fact, if there isn’t a substantial history of domestic violence or substance abuse, sole legal decision-making authority is very unlikely. As such, you must be very careful when you ask for sole authority. If you try to get sole legal decision-making authority from a judge, and do not have a valid basis to do so, it will reflect poorly on you and could impact the judge’s decision(s).
In some high conflict divorces, or where one party has previously been an absentee parent, the Court can order joint legal decision-making, but give one parent final decision-making authority. This is effectively giving one parent tie breaking power. If the parents cannot agree on a school for their child, for example, then the parent with final decision-making authority would ultimately get to decide. It is important not to abuse final authority. The final decision parent must consult with and consider the other parent’s opinion. If a judge feels that a parent with final decision-making authority is overruling the other parent without a good faith basis for doing so, then the judge can and will amend the order.
Parenting time is the time each child spends with each parent. Like legal decision-making authority, parenting time changes as children grow and develop. Infants that breast feed, for example, are likely to spend more time with the mother than the father. Courts base parenting time on several factors: the parents’ schedules, the children’s schedules, the age of the children, history of abuse, etc. Under Arizona law, absent abuse, Courts want minor children to have substantial, frequent, meaningful, and continuing contact with each parent (See A.R.S. 25-403).
The key is creating a parenting time schedule that works for both parties. There are many considerations such as work, school, childcare, and holidays. If the mother and father want to share equal parenting, then they need to work together to develop a parenting time schedule. A parenting time schedule should be clear, concise, and account for each day of the year. The most common equal parenting time schedule is the “5-2-2-5” plan: 5 days with parent A, 2 days with parent B, 2 days with parent A, and then 5 days with parent B. This plan is 50/50 parenting time while also ensuring that both parents get to enjoy weekends with their kids.
If equal parenting time is not possible due to a work schedule or other commitment, parent A can be the primary residential parent (the parent who the kids spend most of the time with), and parent B can take the kids every other weekend and then a few nights each week. Keep in mind that one parent having the kids every weekend is not preferred in Arizona. Weekends are a time that each parent should be able to enjoy with the kids. If one parent monopolizes the weekends, it isn’t fair to the other parent who will only have parenting time during the busy school week.
Parenting time schedules should also divide up the holidays. For example, one parent can have Christmas Eve during even years, and Christmas Day on odd years. The kids should spend Mother’s Day with mom and Father’s Day with dad. Kid’s birthdays can be tricky, but parents should work together so both parents can have meaningful contact with their child on their special day.
In Arizona, judges want parents to share equal decision-making and parenting time. It is important to be reasonable and flexible so that each child can have a meaningful relationship with their parent.
If you have a child and you are not married, paternity needs to be established via court order. Under Arizona Revised Statutes 25-814, a man is presumed to be the father of the child if:
Often, a stipulation between the Parties is enough to establish that someone is the father of a minor child. No matter what, a judge must issue an order establishing paternity. Once paternity is established, custody orders can follow.
One party of custody in Arizona is legal decision-making authority. Legal decision-making authority is the power to make important decisions about a child’s life. Some examples include the child’s religion, schooling, and medical care. Arizona Courts encourage joint legal decision-making authority, where both parents share the power to make these decisions.
If a party seeks sole legal decision-making authority (only one party has the power to make important decisions for the child), then the Court must consider the following factors under Arizona Revised Statutes, 25-403:
Your attorney should analyze and apply all the relevant factors to your case. Family law judges will always base their custody decisions on the best interests of the child. The best interests of the child can be unique to any given case. If you are seeking an award of sole legal decision-making authority, it is important the above-mentioned factors weigh in your favor. A judge will also consider the factors under A.R.S. 25-403.01:
Judges value reasonableness and cooperation between parents when it comes to child custody issues. While this is not always possible, it can go a long way with the court. It is important to have an attorney you trust advocate for reasonable positions in your family law case.
If you have a unique work schedule or other needs, we can negotiate on your behalf to create a parenting time schedule that works for you. Keep in mind that it is important to be reasonable in any family law proceeding. The reasonableness of a party is something the judge keeps a close eye on. If a party is unreasonable negotiating a parenting time schedule, a judge can issue a sanction of attorney’s fees or costs. Your attorney should be able to explain to a judge why your positions are reasonable.
Unfortunately, domestic violence can often come up in family law cases. It is an ugly reality of divorce and custody matters. If you or your children are victims of domestic violence, it is important to fight for your right to be free of abuse. Courts are legally required to consider domestic violence when they issue custody orders.
Judges must consider domestic violence when determining joint legal decision-making authority and parenting time. Pursuant to A.R.S. 25-403.03, if the court finds a person committed a crime of significant domestic violence, or there has been significant history of domestic violence, then that person will not be awarded legal decision-making authority. In determining whether domestic violence has occurred, a judge will consider the following:
Under Arizona law, if significant domestic violence occurred, the court will not award custody of the children to the abusive spouse. A judge will always put the safety of the minor children above all else.
A claim of domestic violence needs to be supported by evidence. It is important to have an attorney who can collect police reports, medical records, DCS records, and witness testimony to ensure a court understands the nature and extent of domestic violence.
Orders of Protection are special injunctions between people who have a domestic relationship (marriage, minor children, etc.). Orders of protection can be obtained from municipal courts throughout Arizona. In order to obtain an order of protection, a party must submit an affidavit to a judge outlining the reasons why they need one. The statement must be specific and should include dates and circumstances of the domestic violence alleged.
A court will only grant an order of protection if they find: 1) The defendant may commit an act of domestic violence, or 2) The defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period. If the judge grants the order of protection, the defendant cannot have contact with their spouse/partner and/or minor children that may be listed on the order. Orders of protection are only valid for one year. If and when you obtain an order of protection, it must be served on the defendant. Oftentimes, a police officer can enact service on your behalf.
Once an order of protection is granted, the defendant can request a hearing to challenge the order. If they request a hearing, it must be scheduled within 10 days of the request. The hearing will include witness testimony and the presentation of evidence. The judge can terminate the order of protection after the hearing if they no longer believe domestic violence has or will imminently occur. It is important to have an attorney at the order of protection hearing to assist the judge in understanding the evidence and advocating your position.
Besides domestic violence, courts must also consider substance abuse when determining custody orders. Under A.R.S. 25-403.04, if a court determines that a parent has abused or sustained a conviction for drugs or alcohol within 12 months of a petition for custody, the court is unlikely to award that parent legal decision-making authority. Court want to protect children from any exposure to drugs or alcohol. There are ways to fight back against this. Your attorney can recommend drug and alcohol testing facilities to prove sobriety to the court.
Attorney Nick Alcock has been practicing in Arizona for over 22 years. His firm is dedicated to helping the entire community and is open to everyone. A native of Arizona, Nick has seen the state change. But the constant factor for his practice has been his desire to help one client at a time. Starting with a tiny office in Tempe, the practice has grown to include 18 world class attorneys and an incredible support staff of caring and talented paralegals. We thank you very much for visiting our site and welcome you to come to the office or call with any questions that you have.
Here at Alcock & Associates our team and staff are dedicated to helping and representing YOU. The first step is to understand your case. We will take the time to get to know you and your legal situation so that we are best able to answer all of your questions. After your initial consultation with our attorneys, you will know what you are facing and what can happen to your case.
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