This section will be substantially re-written after the January 1, 2013 amendments to Title 25 take effect.
The Arizona State Legislature frequently modifies the legal definition of “Custody” in an apparent effort to further disassociate important decision making from day-to-day parenting. Despite repeated modifications of the statutory language, the present family law statutes, as well as those going into effect on January 1, 2013, make it clear that the decision making function of parenting is to be treated separate and distinct from day-to-day parenting time in final orders related to custody and parenting time.
It appears that modifications to Title 25 of the Arizona Revised Statutes that will occur on January 1, 2013, will utilize the term “legal decision-making” in place of “legal custody.” For this explanation, what was referred to as “legal custody” is set forth under “custody” and what was referred to as “physical custody” is set forth under “parenting time.” This is the easiest way to explain the present concepts that will remain somewhat consistent with the January 1, 2013 amendments to Title 25.
Custody (“Decision Making”) Defined
Legal “Custody” has nothing to do with which parent the child or children live on which days. But rather, it is a designation relating to who makes important decisions on behalf of the child. The types of decisions legal “custody” empowers a parent (or both parents) to make are those such as: which religion, which doctors or medical practitioners, and which school or type of educational facility.
Custody (“Decision Making”) Options
Joint custody has historically referred to joint legal custody or joint physical custody or both. Using the term joint custody to relate to both the decision making and the parenting time has led to significant confusion, which may be the motivation behind the amendments to Title 25 taking effect January 1, 2013. So, for the purpose of this explanation, “custody” will refer to only decision making.
Joint legal custody means that both parents share in the decision-making authority over major issues regarding the child.
Sole legal custody vests the decision-making authority with respect to major decisions in one of the parents.
In all divorce proceedings with children, the parties should attempt to reach agreements regarding custody and parenting time. When a court reviews a case dealing with child custody, the first issue it will consider is whether or not it has proper jurisdiction — the right and the power to interpret and apply the law to the child. Once this is determined the court will consider any agreement between the parties. Child custody and parenting time agreements should take into consideration:
- Who will take care of the child;
- How necessary decisions will be made;
- How the child will spend time with each of the parties; and
- How the child’s medical, emotional, education, physical and social needs will be met
The court than reviews this agreement and determines if it is consistent with the best interest of the child. When agreements cannot be reached a hearing is required to resolve these issues.
If the parties are unable to reach an agreement as to which legal “custody” arrangement is in the best interest of their minor child, the court will consider anything it believes is relevant in addition to the factors set out in A.R.S. § 25-403, which include the following:
- The wishes of the child’s parent or parents as to custody.
- The wishes of the child as to the custodian.
- The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
- The child’s adjustment to home, school and community.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
- Whether one parent, both parents or neither parent has provided primary care of the child.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
- Whether there has been domestic violence or child abuse as defined in section 25-403.03.
After considering all of the factors set forth above as well as anything else the court finds relevant, the court will order the custody arrangement that it believes to be in the child’s best interest.
Additionally, both parents are required to take the parental education program course. This course is intended to educate parties about the impacts that divorce, the restructuring of families and judicial involvement have on children. A.R.S. § 25-351. Both parties are required to attend when they are involved in dissolution of marriage, legal separation, annulment or paternity proceeding. A.R.S. § 25-352. There is a fee for enrollment in the program; however, the fee is not to exceed fifty dollars. A.R.S. § 25-355.
When parties are able to reach agreements, the court will adopt those agreements as long as they appear to be in the best interest of the minor child. Such agreements can be almost anything one could imagine. If the parties want to share equal parenting time, depending upon the age of the child, common schedules include the following:
- 3/2-2/3 (Mom Mon & Tue; Dad Wed & Thr; Mom Fri, Sat & Sun; next week reverse)
- 5/2-2/5 (Mom Mon & Tue; Dad Wed & Thr; Weekends Alternated)
- 7/7 (Week 1 Mom; Week 2 Dad)
When parties are not able to reach agreements, the court will consider all evidence it believes to be relevant and also those factors set forth in the “Custody” section above and come up with a schedule that the court believes to be in the best interest of the minor child.
The Court has a set of model parenting plans that it may consider as well. Examples of the Model Parenting Plans for Maricopa County may be reviewed online. A determination of the best parenting schedule for a given situation usually requires substantial consideration of each parent’s work schedule.