LEGAL DECISION MAKING (CUSTODY) AND PARENTING TIME

In 2013 Arizona revised its custody and parenting time laws.

The term "custody" has been replaced by "legal decision making". This was done to relieve some of the confusion around the term "custody". Many parents believed the term to mean which parent the child or children would live with, when it reality it referred to how important decision about the child's care would be made..To help deal with that confusion, the Arizona's statutes replaced "custody"  with the the term "legal decision making". Legal decision making  includes decisions regarding the children's education (i.e. what school they attend, what classes they take, what programs they are involved in etc.), health care decisions (i.e. what physician they see, whether they should attend counseling, elective procedures, etc.) and religion.

The law recognizes that each parent  makes minor and routine decisions for the children during his / her own parenting time - i.e. bedtimes, homework, hygiene etc.). It now describes this notion as  "personal care decisions" and authorizes the parent to make such decisions without input from the other parent. However, the more important decisions depends upon whether parents share joint legal decision making or whether one of the parties has sole legal decision making.

In determining legal decision making, the court will consider whether the parents have the ability to communicate and make important decision together. If not, the court may then designate one parent as having sole legal decision making, without consultation with the other parent.

One of the most significant changes to the statutes is a presumption that the parents shall share legal decision making, and that the Court shall maximize each parent's respective parenting time with the children - so long as such is consistent with the children's best interests. This would suggest that parents should be awarded equal parenting time (i.e. if each is to have maximum time) unless there is a valid reason not to have equal parenting time. However, there are  circumstances that  warrant an unequal division of parenting time, or that one of the parties should make the legal decisions regarding the children. Such circumstances may include the fact that one of the parents has a much stronger bond with the children, one of the parents has substance abuse issues, one of the parents has engaged in domestic violence against the other parent and/or children, one of the parents engages in unreasonable behaviors regarding the other parent or children, and various other reasons.

         ________________________________________________

Relevant Arizona Statutes:

25-403. Legal decision-making; best interests of child

     A.  The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child.  The court shall consider all factors that are relevant to the child's physical and emotional well-being, including:

     1.  The past, present and potential future relationship between the parent and the child.

     2.  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.

     3.  The child's adjustment to home, school and community.

     4.  If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

     5.  The mental and physical health of all individuals involved.

     6.  Which parent is more likely to allow the child frequent, meaningful and 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.

     7.  Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

     8.  Whether there has been domestic violence or child abuse pursuant to section 25-403.03.

     9.  The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

    10.  Whether a parent has complied with chapter 3, article 5 of this title.

    11.  Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

     B.  In a contested legal decision-making or parenting time case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.

25-403.01.  Sole and joint legal decision-making and parenting time

     A.  In awarding legal decision-making, the court may order sole legal decision-making or joint legal decision-making.

     B.  In determining the level of decision-making that is in the child's best interests, the court shall consider the factors prescribed in section 25-403, subsection A and all of the following:

     1.  The agreement or lack of an agreement by the parents regarding joint legal decision-making.

     2.  Whether a parent's lack of an agreement is unreasonable or is influenced by an issue not related to the child's best interests.

     3.  The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint legal decision-making.

     4.  Whether the joint legal decision-making arrangement is logistically possible.

     C.  An order for sole legal decision-making does not allow the parent designated as sole legal decision-maker to alter unilaterally a court-ordered parenting time plan.

     D.  A parent who is not granted sole or joint legal decision-making is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child's physical, mental, moral or emotional health.

25-403.02.  Parenting plans

     A.  If the child's parents cannot agree on a plan for legal decision-making or parenting time, each parent must submit a proposed parenting plan.

     B.  Consistent with the child's best interests in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. The court shall not prefer a parent's proposed plan because of the parent's or child's gender.

     C.  Parenting plans shall include at least the following:

     1.  A designation of the legal decision-making as joint or sole as defined in section 25-401.

     2.  Each parent's rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training.

     3.  A practical schedule of parenting time for the child, including holidays and school vacations.

     4.  A procedure for the exchanges of the child, including location and responsibility for transportation.

     5.  A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.

     6.  A procedure for periodic review of the plan's terms by the parents.

     7.  A procedure for communicating with each other about the child, including methods and frequency.

     8.  A statement that each party has read, understands and will abide by the notification requirements of section 25-403.05, subsection B.

     D.  If the parents are unable to agree on any element to be included in a parenting plan, the court shall determine that element.  The court may determine other factors that are necessary to promote and protect the emotional and physical health of the child.

     E.  Shared legal decision-making does not necessarily mean equal parenting time.