Child custody is a key question parents must settle before an Arizona court will allow them to legally separate or grant a divorce. Ideally, both partners agree that their children’s well-being is paramount and are able to calmly communicate with one another about this.
Arizona updated its laws addressing custody in 2013. The major impacts were:
- Replacing the word “custody” with “parenting time,” and addressing access and visits with grandparents.
- Replacing the phrase “legal custody” with “legal decision-making,” which refers to essential decisions about education, medical, personal care, and religious training.
A bill that passed the Arizona House in March 2022 would have given teenagers over age 14 more input in deciding parenting time and legal decision making but the bill did not come to a vote in the Senate.
These laws apply to unmarried parents only when paternity has been legally established.
How Does Arizona Define and Award Child Custody?
Custody for minor children in Arizona is defined by two terms that actively avoid the word “custody.”
- Legal decision-making
- Parenting time
Parents must agree on how each is divided between them, or a judge will have to make the determination based on what the Judge determines is in the best interests of the child.
Parents are expected to provide courts with a suggested parenting plan that sets schedules for both parents to spend time with the children. Each parent’s time should be determined according to what is best for each child. For example, the parents may agree that nursing infants initially need more time with their mothers but share time more equitably as they are weaned.
Divorcing Parents Must Agree on and Present a Written Parenting Plan
At first glance, a parenting plan may sound like an insult to divorcing couples, insinuating that divorced parents can’t see what’s best for their children.
In reality, parenting plans promote consistent contact between each parent and child, predictable schedules, and most importantly, avoid conflict, says Tabitha Jecmen, a divorce lawyer and partner from the Scottsdale firm Lawrence & Jecmen. This is particularly important for holidays and birthdays when scheduling conflicts are most likely to arise.
➤ “A specific parenting plan is the best way to avoid Christmas Eve fights about where a child is supposed to be.” – Tabitha Jecmen, Lawrence & Jecmen Divorce Attorneys
“Parenting plans are usually negotiated for 50% time with each parent,” Jecmen says, which she says is the best approach for most children. “Kids need both of their parents,” she observes.
“Most parents will agree on a parenting plan with little conflict,” says Andi C. Lawrence, Jecmen’s partner at Lawrence & Jecmen. “But those who continue to fight need to put aside their feelings about one another and focus on their children’s well-being.”
➤ “Divorcing couples need to separate the idea that a bad spouse is a bad parent.” – Andi C. Lawrence, Divorce Lawyer, Lawrence & Jecmen.
Most parents are good parents, and even though that might mean the other parent does something differently, it doesn’t make them a bad parent.
How Do Divorce Attorneys Help Parents Agree on a Parenting Plan?
Skilled divorce attorneys understand the importance to their clients of reaching an
agreement with their ex-partners on parenting plans and legal decision-making. They help them sort out their concerns and develop effective communication with ex-partners.
These steps can prevent a worst-case scenario in which a judge ends up deciding key parts of a parenting plan and assigns legal decision-making. The result can be unequal parenting time and reduced legal input for one parent.
Good parenting plans anticipate potential disagreements and settle them before they can arise. Unless there is a conflict, most judges are fine with what parents agree is best for their children, Jecmen says. The following is an example of a parenting time schedule (there is also a sample one here) and some of the things that might be included in a parenting plan.
Sample Parenting Time Schedule
Modifications to parenting plans can occur for a number of reasons:
- A parent or child moves to another region, requiring time adjustments to the parenting plan
- As children mature, they need less active supervision
- A parent is unable to continue with the schedule or requests a change
What If a Partner Wants to Move Out of State with a Child?
A parent who wants to move out-of-state and take a child must work with the ex-partner to update the existing parenting plan and present it to the court.
Moving away can be an issue for parents who want, or have had, equal parenting time. If a parent objects to a child moving out of state, a judge can step in and determine what is in the child’s best interests. A judge cannot prevent a parent from moving, but a judge can order a child to remain in Arizona.
The State’s Goal is to Protect Children and Ensure They are in Good Care
Arizona law requires judges to ensure a parenting plan reflects the best interests of children of separating or divorcing parents. They want and expect parents to co-parent the children.
Consistent and regular schedules are important for children in any living situation. They can help children adjust to parents living apart and encourage parents to be more conscientious about their former partner’s relationships with the children they had together.
Parents can also get help from mediators to create these schedules. Divorce attorneys can serve as mediators or arrange for independent mediators who specialize in child custody. Courts can also appoint mediators to help parents come to an agreement a court will accept.
What Factors Do Arizona Judges Consider in Determining Custody/Parenting Time?
Arizona judges want parents to agree on custody plans. The optimal solution is fully shared parenting and legal decision-making with parents who are present and willing to share child-raising responsibilities.
Notably, the law does not allow a parent’s gender to be a factor.
If the parents are unable to come to an agreement, judges need to see evidence of the claimed parenting and decision-making faults or deficits to decide what’s best for their children. In some circumstances, it may also be appropriate for the court to have an interview with the child to learn about their relationship with both parents, and the child’s wishes.
Divorce attorneys help their clients present accurate facts to the courts. They explain to their clients how to document details a judge needs to know about their personal involvement with and responsibilities for each child. Examples include:
- Relationship with each child. This includes past, present, and potential future relationships. Judges will not give one parent 100% of the parenting time unless there is significant evidence that the other parent is unable or unwilling to participate in a child’s life, is absent, or the court has been presented with evidence of abuse or neglect.
- Mitigating factors to absences. Not all parental absences are intentional. A parent who has struggled to maintain a relationship with a child needs to show what caused the struggle (their job requires frequent travel, they are in the military, spouse refused access) and the steps they have taken to resolve the problem. A divorce lawyer can help a client in this situation map out how they intend to maintain positive future relationships with their children.
- A parent who is unwilling to share parenting time or legal decision-making must present evidence showing the other parent is a danger to them or their children.
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- Children’s relationships with their siblings and others in the home, as well as frequent visitors.
- Mental health issues for parents and children, including treatment and adherence to a treatment plan.
Divorce lawyers ask clients about their own behaviors, especially if the other parent has accused them of violence, neglect, or abuse. They help craft truthful, accurate responses to show behavioral improvements and dedication to parenting.
Do Arizona Judges Decide If a Parent is Unfit?
Judges presiding over custody cases can only consider evidence presented to them by one of the parties. They do not receive information about arrests or even Child Protective Services (CPS) actions against a parent unless one or both spouses inform the court.
Judges will not allow children to be placed in dangerous situations. If they see credible evidence that a parent is violent or is a substance abuser, they may order supervised visits with that parent or preclude them from sharing legal decision-making. Credible evidence includes arrest records, prior convictions, and drug test results.
The other parent must present a new parenting plan if they want to assume more or all responsibility for their children. In some circumstances, grandparents can also be included in a parenting plan.
Decisions about supervised visits are done on a case-by-case basis. Judges look at the specific problems a parent has and what actions they have taken to remedy the problem before ordering supervised visits or a new parenting plan.
While judges do not keep tabs on parents, if the parents want to change their parenting agreements it must be submitted to the Court for approval in order for the changes to be legally effective. As we noted above, mature children are permitted to tell the court about their own views, but they cannot refuse visits altogether until they reach age 18.
Also note that supervised visits may be appropriate when an estranged parent wants to reconnect with a child after a long absence. A parent can also request this if they present evidence that an ex-partner might kidnap a child to gain “full custody” and escape the purview of the courts. Although they make news headlines, these are rare events.
Child Custody is All About Providing the Best Possible Situation for Children of Divorced Parents
While parents have the right to direct how and where their children live, are educated, and even eat, these are not absolute rights. The state has an ongoing interest to see that all children have safe shelter, appropriate education, and access to food and healthcare.
Divorce can impact how decisions related to your children are made. The majority of divorcing parents work toward custody agreements that minimize disruption in their children’s lives and keep them on a path toward healthy and happy lives. Arizona law encourages parents to cooperate with one another where their children are involved.
Still, divorce is an emotional event for families. We understand the challenges and confusion all family members face with a divorce and custody decisions. If you are separating from a spouse and have children, please reach out to us. We are recognized for our strong skills in helping separating or divorcing parents in Arizona achieve fair and equitable parenting plans for their children.