Scott David Stewart 0000-00-00 00:00:00
Putting The "Legal" In Arizona Child Custody Many divorcing parents arrive at our law offices in a state of confusion over how Arizona's family law courts handle child custody. Parents struggle with the legal terminology and are often under the misguided impression that child custody laws are uniform from state to state, which is certainly not so. In some states, a child may choose which parent he or she wishes to reside with. By contrast, in Arizona the court is required to "consider... [t]he wishes of the child as to the custodian" in determining what is in the best interests of that child but the child has no right to decide which of his parents will be the custodian. Although not a common practice, an Arizona family law judge has discretion to interview the child in camera to hear the child's position on custody. Typically, however, the court will refer the child interview to conciliation services and have them submit a report to the court regarding the child's wishes. The judge may also consider the parents' testimony on what they believe their child's wishes for custody are. More common, though, the court will be guided by the professional opinions of mental health experts in deciding what is in the best interests of the child. Untangling Child Custody Whenever we begin discussing "who gets custody" with a client, we start the conversation with a clear description of the two basic divisions - that is, the difference between legal custody and physical custody. • On Legal Custody. This is the cornerstone of parental decision making over the child. The parent with legal custody has authority to determine how important decisions over the child will be made. These are decisions over many essential matters, such as the child's healthcare, education, and the faith the child is brought up in. If one party is granted sole legal custody, then only that parent has authority to determine how those important decisions will be made. Under joint legal custody, the most common arrangement in Arizona, both parents retain equal decision-making authority over these important child-rearing matters. • On Physical Custody. Many clients are confused by the term physical custody, which refers to the amount of time the child will spend with each parent. With joint physical custody, neither parent is designated the primary residential parent. In circumstances where one parent has significantly more parenting time a Primary Residential Parent may be designated, which allows them to make day to day decisions concerning the child. A primary parent designation may affect legal decision such as the child's school. • On Parenting Time. Parenting time encompasses the regular parenting/visitation schedule for the child, as well as holiday parenting time, summer parenting time, and any other special parenting time, including vacation and special occasions. Parents are encouraged to work together and create their own parenting schedule so that they can avoid the expense and uncertainty of contested custody litigation. Statutory Essentials Of Legal Custody Arizona's statutory legal custody framework begins with A.R.S. § 25-403 which gives the court discretion to order sole or joint custody, neither of which is favored by presumption at law. And although many clients believe the mother has the custodial advantage, the court cannot prefer one parent over the other based on the party's sex. • On the Child's Bests Interests. Whenever custody is contested, the court must "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." A.R.S. § 25-403 provides a laundry list of relevant factors to consider when determining whether joint custody is in a child's best interests. Some of those factors include: the parents' and child's wishes, the child's interrelationships with family members and others, the mental and physical condition of everyone involved, the parent likely to facilitate a meaningful relationship between the child and the other parent, the acting primary caregiver, and the occurrence of coercion, duress, domestic violence, or false reporting of abuse in the custody case. • On Domestic Violence. A parent's domestic violence or child abuse is considered to be contrary to the child's best interests. The court will not award joint custody when a preponderance of the evidence supports a finding that a party has a significant history of domestic violence. A.R.S. § 25-403.03. • On Drug Offenses. A party's conviction history of drug offenses in the prior year creates a rebuttable presumption that sole or joint custody with that offending parent is contrary to the best interests of the child. A.R.S. § 25-403.04. • On Sex Offenders and Murderers. Except in those instances wherein the court finds no significant risk to the child, a party who was convicted of a sex offense or the murder of the other parent will not be granted sole or joint custody (legal or physical) or unsupervised parenting time. A.R.S. § 25-403.05. Conflict Resolution Facilitators: Mediators, Parenting Coordinators, And Custody Evaluators Child custody is among the most contentious areas of family law. When the level of conflict is so intense and persistent that the parties are unable to cooperate in decisions about their child's future, they turn to several professionals for assistance. To help parents arrive at a custody arrangement that is in the best interests of the child and which serves both their independent interests, divorce attorneys may utilize three facilitators - that is, the mediator, the parenting coordinator, and the child custody evaluator. • On Mediators. The mediator helps the parties work toward agreement on the disputed child custody issues presented. If the parents can reach agreement through mediation, it is very possible that a custody trial will be unnecessary. The mediated agreement is signed by both parents and submitted to the judge who, absent objection, signs the order. By reaching a mediated agreement, the parents maintain control of their child custody arrangement. Otherwise, the court will decide what is in the best interests of the child and dictate the custody terms to the parents. • On Parenting Coordinators. When conflict persists between parents and interferes with their custody decision-making, involving a parenting coordinator may be the best course of action prior to trial. Without advocating for either parent, the coordinator meets with both to discuss their concerns about the parenting plan. An experienced coordinator will skillfully and tactfully weave counseling, parent-education, and ADR techniques into these sessions. In facilitating negotiations, the coordinator assists the parties in reaching a fair settlement, one that is in the best interests of the child and which satisfies as many of their individual needs as practicable. The parenting coordinator reports to the court with recommendations, to which either party may timely object. The court may then approve, modify, or reject those recommendations or may set the matter for hearing. • On Child Custody Evaluators. The child custody evaluator will, after thorough investigation and inquiry, make custody and parenting time recommendations to the court. For the purpose of making a recommendation in the best interests of the child, the evaluator interviews the parents, the child, and other family members, and reviews documents and records regarding the child. The evaluator then submits a detailed report to the court with recommendations for legal custody, physical custody and parenting time. Bear in mind that, should a trial become necessary, the child custody evaluator's report will be very influential with the court. In every Arizona case involving child custody, specific parenting time, or child support, both parties must complete a parent information course within 45 days of the initial court filing. A.R.S. § 25-352. The mandatory class educates parents on the impact their separation, divorce, or paternity case may have on the emotional well-being of their child. Statistics bear out that parties are more capable of cooperating with each other for their child's benefit after they've taken the parenting class. The program also minimizes return visits to the courthouse to resolve future parenting disputes. Ensuring that the client understands all responsibilities associated with child custody is essential to resolving custody disputes, avoiding protracted litigation, and reducing the likelihood of a later petition to modify custody.
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