Scott David Stewart 0000-00-00 00:00:00
Physical Custody and Parenting Plans – Who Has The Kids? Whenever there is a minor child involved in a couple’s break-up, major decisions on physical custody must be made in the child’s best interests. More specifically, when parents seek to share joint legal custody in Arizona, they are expected to cooperate in creating a written parenting plan for their child. This detailed schedule provides a defined, predictable custody arrangement that delineates the terms of access that both parents must abide by and upon which the child depends. The parenting plan is integrated into the court’s child custody orders, rendering it fully enforceable against both parents. Once the custody order is in place, the parties are not reliant upon each other’s goodwill to strengthen and maintain a healthy relationship with their child. As most divorce attorneys have observed, a cooperative spirit is not always forthcoming in a divorce or legal separation, not even when a child’s future hangs in the balance. Should an element of the plan be disputed or the parties remain uncompromising, the family law judge will decide how they will parent their child, resolving any outstanding issues. (For many couples, that is a sufficient incentive to work through their heightened emotions and differences of opinion to concentrate on the needs of their child.) Custody orders are not something judges are eager to change without good cause. With certain specific exceptions, a custody decree cannot be modified for a full year following the date of entry. Only with a motion alleging a dangerous environment will the court consider modifying child custody prior to the expiration of that year. Such a motion must present affidavits sufficient to persuade the judge that the minor may be in a dangerous environment that could seriously impact the child physically, mentally, morally, or emotionally. Ins And Outs Of Parenting Time There is a lot more to a parenting plan than just scheduling what time she picks the kids up and what day he drops them off. • On Primary Residential Parent. Physical custody refers to the supervision and physical care of the child. Once a decision is made on which party will be the primary residential parent (the one who has the child most of the time), the other parent will have regular access to the child under the co-parenting agreement. When the parents share joint physical custody, the child will spend essentially equal time at each parent’s home. • On Parenting Time. Parenting time is the parent’s right to have the child physically with him or her. During such parenting time, the mother or father has the right and responsibility to make routine day-to-day decisions concerning the child. (These decisions must be consistent with the important determinations made by a parent who may have sole legal custody.) A parent who has not been granted primary residential custody is still entitled to frequent, continuing contact with the child and reasonable parenting time. • On Unmarried Parents. When unmarried parties have a child, but paternity, custody, and parenting time have not yet been established, the instability and unpredictability of each parent’s access to the child can be very detrimental for everyone involved. An informal parenting agreement between unmarried parents may work for a short while, but it is grossly inadequate for the long term. (Remember that the long term is typically 18 years.) Informal parenting arrangements, although helpful for some people in the interim, will be of little help resolving problems when a parenting conflict arises. Parents Seeking Custody Whether the couple is married or unmarried, either parent may seek to gain primary custody of the child. When a custody action is initiated, the court begins assessing what is in the best interests of the child and may award joint custody over either parent’s objections. The mother or father may request temporary custody orders to address parenting time during pendency of the action, before a trial and permanent orders are forthcoming. The family law judge will not grant any form of child custody or unsupervised parenting time, however, to a party who was convicted of murdering the other parent; or who is a registered sex offender. The exception being if the court, makes specific findings that the parent poses “no significant risk to the child.” Proposing A Parenting Plan Given how emotionally invested parents are in their children and how intense child custody disputes can be, negotiating a reasonable parenting plan is often more difficult than other divorce issues. No matter how many challenges are presented by the parents, the focus must remain on the best interests of the child and not be diverted by what each individual desires for himself or herself. In drafting a parenting plan, at a minimum you must include the following six provisions: 1. 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. 2. A schedule of the physical residence of the child, including holidays and school vacations. 3. 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. 4. A procedure for periodic review of the plan’s terms by the parents. 5. A statement that the parties understand that joint custody does not necessarily mean equal parenting time. 6. A statement that each party has read, understands and will abide by the notification requirements of § 25-403.05(B) [regarding convicted or registered sex offenders or dangerous crimes against children]... When the parties thoughtfully and thoroughly address each of these six components, the resulting parenting plan will guide them in every aspect of child-rearing for many years to come, reducing the need for court intervention later on when inevitable bumps in life’s road occur. But what happens when one or both parents deviate significantly from the parenting plan? Violating Custody And Parenting Time Orders There are many ways a party can seriously violate child custody orders, of course, such as taking the child out of the country without notice to, or consent from, the other parent. An all-to-common excuse for violating custody orders, however, stems from the custodial parent’s frustration with the other party’s non-payment of child support. Unpaid child support, however, is not a legal justification for withholding or obstructing parenting time. Therefore, it is important that both parents understand that child support and child custody come under two separate and distinct court orders. The party’s decision to deviate from custody and parenting time orders can be a very costly proposition. When custody orders are violated, the court may find a parent in contempt, may order that missed parenting time be recovered, and may assess court costs, civil penalties, and attorney fees against the violator. The family law court frequently orders parties back into mediation to resolve their conflicts, too, at the violating parent’s expense.
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