Child Custody AZ FAQ’S
Thank you for visiting our Arizona Child Custody Frequently Asked Questions page. Our Scottsdale child custody attorneys want to provide you with answers to all of your questions regarding child custody and family law.
We strive to provide answers to all of your questions regarding child custody and family law. We encourage you to view our Arizona Child Custody Laws page, as well as our Family Law Blog to obtain more information about all aspects of family law.
What Are the Child Custody Factors in Arizona?
The judge assigned to your case will decide each parent’s role in making major decisions affecting your child(ren) and each parent’s respective rights to parental access with the child(ren). The judge’s decision is based entirely upon what orders he or she believes is in the children’s best interests.
The court is required to take several factors into consideration before issuing orders regarding legal custody (now referred to as “legal decision making”) and the division of parenting time each parent will share with the child(ren). Specifically, the court will consider the following factors:
- The wishes of the parents;
- The child’s wishes;
- How the child interacts with each parent and any other children or other adults in their respective households;
- The mental, emotional, and physical health of each care giver to the child;
- The child’s adjustment to home, school and surrounding community;
- Which parent has been primarily responsible for providing care for the child in the past, as well as each parents current and future potential relationship with the child;
- Which parent is more likely to allow the child to maintain frequent and meaningful contact with the other parent;
- Whether either party has attempted to use duress or coercion to force the other parent into reaching an agreement regarding legal decision making or parenting time of the child;
- Whether either party has raised a false allegation of child abuse against the other parent;
- Whether either parent has been convicted of a domestic violence offense or has a substance abuse problem;
- Whether either parent has unnecessarily protracted litigation concerning the issues of legal decision making or parenting time;
If the parents are unable to reach an agreement regarding legal decision making or parenting time of their children, the court may order the parents to participate in mediation to assist them in reaching an agreement regarding these issues. If the parents are unable to resolve their differences through mediation, the court may appoint a third person, such as a psychologist experienced in working with divided families, to evaluate the case and provide an expert opinion regarding the most appropriate custody and parental access orders.
It is important to understand that if the court finds the existence of significant domestic violence or a significant history of domestic violence, the court is precluded from granting custody to the perpetrator of that domestic violence and the court is no longer required to consider any of the child custody factors set forth above. You should read our analysis of the Arizona Court of Appeals decision in the Hurd v. Hurd case for more information on the effect of domestic violence on child custody decisions in Arizona.
“Protecting The Innocence of Children Is Our Primary Responsibility.”
Chris Hildebrand | Founder of Hildebrand Law, PC
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
The Uniform Child Custody Jurisdiction and Enforcement Act (ie., “UCCJEA”) is a series of statutes in Arizona that determines whether an Arizona judge may either issue child custody orders or modify child custody orders issued in another state. The purpose of the UCCJEA is to protect against the risk of more than one state issuing conflicting child custody orders. As you can imagine, conflicting child custody orders would pose significant problems for parents and their children.
You may want to read the Arizona Court of Appeals decision in the Melgar v. Campo case that discusses an Arizona judge’s ability to issue emergency child custody orders modifying another state’s child custody order and the limit to the judge’s authority in such emergency situations.
A more unique situation present itself when a child was born overseas and, therefore, has not resided in any state in the United States. The problem then exists that no state within the United States has “home state” jurisdiction because the child has not lived in any state in the United State for any period of time, much less for a period of six months. The Arizona Court of Appeals resolved this issue in the Arizona Department of Economic Security (ADES) vs. Grant case.
The court of appeals ruled that Arizona may accept “home state” jurisdiction if no other state would have jurisdiction because the child has not resided in the United States or any particular state for six months and, therefore, no other state has a claim to “home state” jurisdiction under the UCCJEA.
Arizona, as well as every other state in the United States, has adopted the UCCJEA. Although each state made some modifications to their versions of the UCCJEA, every state passed a version of the UCCJEA that is consistent with those laws passed into law in other states. The primary controlling factor is the determination of which state is the “home state” of the children, which is defined as the state in which the child has lived for at least six months.
However, even when a child moves to another state and remains in that state with the child for more than six months, the new state does not necessarily obtain jurisdiction to modify child custody or parenting time if the state that initially issued the child custody orders has not first declined to continue exercising its exclusive and continuing jurisdiction over those child custody orders. You should read our summary of the Arizona Court of Appeals decision in the Mangan v. Mangan case regarding that specific situation.
There are many rules and exceptions in the UCCJEA, so it is imperative you speak to an experienced child custody attorney to advise you on whether an Arizona judge has the authority to issue or modify child custody orders in your case.
You may want to read our article on the Arizona Court of Appeals decision in the case of the Arizona Department of Economic Security (ADES) vs. Grant for a discussion of the application of the UCCJEA in that particular case.
What Forms of Child Custody Are There in Arizona?
The term custody in Arizona, now referred to as “legal decision making”, has been grossly misunderstood and misused. The child custody in Arizona really pertains to two distinct and very different issues.
Specifically, how major decisions affecting the children, such as decisions regarding the children’s education, health care, and religious upbringing, are made and how parenting time is apportioned between the two parents.
The first issue regarding how major life decision are made for the children is referred to as the form of legal decision making and may be either sole legal decision making, meaning one parent gets to make all of those decisions, or joint legal decision making.
The second issue regarding parenting time pertains to the parenting time schedule the parents share with their child. A parenting time schedule may vary considerably from case to case based upon a a myriad of factors.
What is Sole Legal Custody or Sole Decision Making in Arizona?
A parent granted sole custody (now referred to as “sole legal decision making”) has the authority to make the final decision regarding the major life decisions affecting the parents’ children, such as where the children attend school, the health care the children receive, and the extracurricular activities the children will participate in regardless of the opinion of the other parent.
Unless otherwise ordered, the other parent is still entitled to obtain information regarding his or her children’s performance in school, performance in extracurricular activities, and health care from the other parent or directly from the provider of those services.
What is Joint Legal Custody or Joint Decision Making in Arizona?
Parents sharing joint legal custody (now referred to as joint legal decision making) must reach agreements regarding major life decisions affecting their children. Each parent’s rights and responsibilities in communicating about and reaching agreements regarding these decisions are outlined in a court ordered Parenting Plan.
Disagreements between the parents regarding these decisions are often resolved through mediation or through use of a third person, referred to as a Parenting Coordinator, who will investigate the dispute and issue a recommendation to the court to resolve the disagreement between the parents.
When parents disagree regarding which school their children will attend, the parties may need to present that issue to the court for the judge to make the decision. The Arizona Court of Appeals in the case of Jordan v. The Honorable John Rea set forth the factors the trial court should consider when determining which school the children will attend.
However, the Arizona Court of Appeals in the Baker v. Meyer case set forth even more factors the trial court must consider when ruling on a choice of school if the change in school will affect a parent’s parenting time with the children, such as when the proposed new school is located so far away from a parent that he or she may not be able to exercise all of his or her court ordered parenting time.
If the parties disagree with the recommendations made by the Parenting Coordinator, such as a disagreement regarding what school a child will attend, they are entitled to a hearing and an Arizona judge will have the authority to make the school decision based upon what is in the best interests of the child pursuant to the decision in the DePasquale v. Superior Court case. You may watch the video below discussing an appellate case in Arizona that dealt with that issue.
Depasquale v. Superior Court | Delegation of Parenting Time Decisions
DNA Testing in Arizona Child Custody Cases?
Does the Court Favor Mothers over Fathers in Child Custody Cases in Arizona?
The law in Arizona prohibits a judge from favoring mothers over fathers in child custody cases in Arizona. Our experience has been that judges do not show a preference based upon the sex of either party.
Instead, the courts are fair to both parents, but is primarily focused upon what a particular judge believes to be in the best interests of the children. For more information on parental preferences in Arizona divorce cases, please read our article entitled “Do Courts Favor Mothers Over Fathers in Child Custody Cases”.
What is a Child Custody Evaluation in Arizona?
How Do You Prepare for a Child Custody Evaluation?
What is a Parenting Coordinator in an Arizona Child Custody Case?
If children are involved in your case and you have joint legal decision making and are experiencing significant or recurring disagreements regarding decisions affecting your children, you may consider appointing a Parenting Coordinator.
A Parenting Coordinator is typically a mental health professional, although there are Arizona family law attorneys and others listed on the approved Parenting Coordinator roster. Parenting Coordinators who are appointed by the court are available to assist parents in resolving day to day disputes that may arise between parents regarding the care and upbringing of their children.
The Parenting Coordinator will either speak with you on the phone or bring both parties into their office when one of the parents notifies him or her of a dispute regarding the children. The Parenting Coordinator will listen to what both parents have to say and review the evidence the parties present. The Parenting Coordinator will then issue a report and recommendation to the Court regarding his or her opinion as to what should be done to resolve the dispute.
The court will often adopt a Parenting Coordinator’s recommendation as the order of the court unless either party objects. If either party objects to the recommendations of the Parenting Coordinator, the court will set an evidentiary hearing, listen to the evidence presented by both parties, and issue a report with recommendations to the court regarding what that Parenting Coordinator believes to be in the best interests of the children.
It is important to know what a Parenting Coordinator may do and what they may not do in your case. Parenting Coordinators may only deal with decisions affecting the child. For example, such decisions would include which doctor the child goes to, which school the child attends, disagreements regarding the child’s participation in extra-curricular activities. enforcement of the existing parenting time schedule ordered by the court, and minor changes in that parenting time, such as when a parent may pick up the child for his or her parenting time.
The Parenting Coordinator is not permitted to make major changes to the parenting time schedule the court has ordered. They may, however, from time to time make minor changes to the parenting time schedule. They cannot, however, make substantial changes to the parenting time schedule or decisions or recommendations regarding any financial issues such as child support.
Having a Parenting Coordinator assigned in your case will very likely save you time and money when you have continual disagreements regarding issues affecting your child. If you don’t have a Parenting Coordinator in place, you are left with two options. One option is to file a motion with the court, wait several months for a hearing, wait for the judge to, thereafter, issue a ruling on the issue, and most likely incur attorney fees.
If you have a Parenting Coordinator appointed on your case, you can simply pick up the phone, speak to your Parenting Coordinator, and can typically expect to receive a recommendation within a few days. That recommendation will normally be adopted by the Court as the order of the Court soon thereafter. If either party files an objection to the report, the Court is required to hold an evidentiary hearing to enable the Court to then issue a ruling on the issue.
We often recommend the appointment of a Parenting Coordinator if it is evident there will be on-going conflict between the parents to protect our clients form having to come back and pay our law firm to continuously litigate ongoing issues.
You should also understand that, although a judge may appoint a Parenting Coordinator to make recommendations regarding issues concerning your children, the court cannot delegate the judge’s obligation to provide the parents an opportunity to object to those recommendations, the court’s obligation to allow the parties to present evidence at a trial based upon those objections, and the trial court’s obligation to independently make issue orders based upon the evidence presented at that trial. You should read our article entitled “A Judge Cannot Delegate Child Custody Decisions to a Third Party” to learn more about the limits of a Parenting Coordinator’s authority in an Arizona child custody case.
You may also want to consider reading our other article about the Arizona Court of Appeals ruling in Contreras v. Bourke, which found the court violated a parent’s right to due process after conducting an evidentiary hearing on an objection to a Parenting Coordinator’s report and recommendations to understand the additional limitations placed upon the court when conducting a hearing based upon a Parenting Coordinator’s report and recommendations.
What Visitation/Parenting Time Schedules do Judges Order in Arizona?
Parenting time refers to the scheduling of access between the parents and their child(ren). The parenting time schedule is not affected in any way by the designation of legal decision making as either sole legal decision making or joint legal decision making.
Simply stated, the form of legal decision making, typically, has no bearing upon the amount of time either parent spends with their child(ren); unless there are concerns about a parent’s fitness or ability to properly care for his or her children.
Parenting time schedules can vary. For very young children, the parenting time could be several times a week for several hours at a time. For older children, the parenting time schedule can be as limited as the children living primarily with one parent with the other “non-custodial” parent seeing the children every other weekend and one midweek evening visit.
Alternatively, the parenting time schedule could be an equal parenting time arrangement. Lastly, the schedule could be anywhere between those two types of schedules depending upon what the court believes is in your children’s best interests.
One of the nations foremost experts, Dr. Phil Stahl, who conducts child custody evaluations across the country spoke at an American Bar Association conference in 2015 about equal parenting time arrangements.
You may read my article about Dr. Stahl’s speech entitled “Is a Presumption of Equal Parenting Time in Arizona Good for Children”. You should understand that Arizona law does not create a presumption of equal parenting time in Arizona; despite a strong push by an Arizona State University professor’s unsuccessful attempt to get such legislation passed by the Arizona legislature.
Can a Parent With Sole Custody Limit Access to a Child’s Medical or Other Records?
Both parents are entitled by statute to obtain copies of their child’s medical and educational records directly from the custodian of those records without the permission or authorization of the other parent regardless whether the parents share joint legal decision making or one parent has sole legal decision making over the child.
There are, however, some exceptions to this general rule, such as when release of the child’s medical records to a parent may place that child in danger of harm by the parent requesting the records, which may occur if a parent is abusing his or her child.
What Happens if A Parent Wants to Move Out of State With A Child?
Generally, a parent seeking to move the children more than on hundred (100) miles from the other parent must give the non-moving parent notice of the intention to relocate at least sixty (60) days prior to the proposed move, pursuant to Arizona Revised Statute Section 25-408.
However, there are certain situations when the provision of Arizona Revised State Section 25-408 do not apply and, therefore, notice of an intention to relocate with the child is not required. You should read our summary of the Arizona Court of Appeals decision in the Buencamino v. Noftsinger case for more information about when A.R.S. 25-408 does not apply.
During that sixty (60) day time period, the non-moving spouse may petition the court for an injunction to prohibit the other parent from moving the children. There are certain statutory exceptions which, if applicable to your particular case, may allow a spouse to move with the parties’ children prior to the expiration of the sixty (60) day notice requirement.
One tactic some parents have used to circumvent the one hundred mile rule, which is contained in Arizona Revised Statute Section 25-408, is to make multiple moves that are all less than the one hundred mile threshold but cumulatively (i.e., move after move) is more than one hundred miles; all without needing the permission of the court. You should read our article “Relocation of a Child in Arizona” for more information regarding the Arizona Court of Appeals decision in Thompson v. Thompson addressing that issue.
It is also important to note that the move away statute (i.e., A.R.S. 25-408) provides a remedy to stop a child’s relocation to another state. Others, such as grandparents, who have court ordered parenting time with children cannot use A.R.S. 25-408 to attempt to prevent a parent from relocating a child out of the state of Arizona. You should read our summary of the Arizona Court of Appeals decision in the Sheehan v. Flower case ruling that a grandparent may not avail himself or herself of the remedies in A.R.S. 25-408 to prevent a parent from relocating his or her grandchild out of Arizona.
How Do You Modify Visitation or Parenting Time in Arizona?
You may ask that the court modify parenting time orders anytime you believe you have sufficient evidence to establish another parenting time schedule is in the best interests of your children. You may do so by filing a Petition for Modification of Parenting Time up until the child turns 18 years of age.
However, Arizona law does impose some time limits for the modification of a prior legal decision making order. For example, a legal decision making order cannot be modified for one year after the court last entered the order unless there is a threat of harm to the child.
Changes in the parental access schedule with the children, however, can be changed at any time. Generally, almost all judges dislike seeing parents repeatedly going back to court requesting changes in custody or visitation orders, unless a real and significant change in circumstances has occurred.
You should read our are indepth analysis of the Arizona Supreme Court’s ruling on how a judge is to determine whether a significant change in circumstances has been alleged to justify setting the case for a child custody modification trial by clicking our link to the Pridgeon v. Superior court case.
The Court also has the ability to grant an Emergency Petition to Modify Child Custody or Parenting time if a parent raises allegations indicating the children are in imminent risk of serious harm. If so, the court can change or even eliminate all parenting time to a parent until such time an evidentiary hearing may be scheduled for the court to receive evidence from both parents to decide whether to keep the emergency orders in place, modify them, or cancel those emergency orders.
The Arizona Court of Appeals addressed the issue of whether a trial judge is required to modify child support if it modifies child custody or visitation orders despite neither party having requested a modification of child support in the Heidbreder v. Heidbreder case. The Hiedbreder court held an Arizona judge is required to determine whether child support should be modified any time a court modifies child custody or visitation, even if neither parent filed a request to modify child support.
How To Enforce Parenting Time or Custody in Arizona?
Arizona Law (A.R.S. 25-408) provides “[a] parent not granted custody of the child is entitled to reasonable parenting time rights to ensure that the minor child has frequent and continuing contact with the non-custodial parent, unless the court finds, after a hearing, that parenting time would endanger seriously the child’s physical, mental, moral or emotional health”.
The court will order the parenting time the judge feels is in the child’s best interests. However, some cases involve a parent who attempts to restrict the other parent’s access to the children, now referred to in the psychological community as “gatekeeping” as opposed to the prior term “parental alienation”.
The parent who does not follow the parenting time order may be found in contempt of court, may be required to pay a financial sanction, may be forced to pay a bond through the clerk of the court, which could be forfeited if future violations occur, and, in extreme cases, can be sent to jail for contempt.
That parent may also be assessed attorney’s fees and court costs. The court may also order make up parenting time to the parent who was denied access to the child. Denial of parenting time is likely to be a major factor supporting a change of custody to the other parent. A parent may even be arrested and charged with a crime by a law enforcement officer for refusing to obey the court’s parenting time orders.
An interesting decision was issued by the Arizona Court of Appeals in Munari v. Hotham regarding whether a step-parent could be held in contempt for violation of a court order for visitation of his or her spouse’s child. The trial judge held the step-parent in contempt of court, which the Court of Appeals overturned because the step-parent was not a party to the child custody case at the time the orders were violated. This leaves the door open to forcing a step-parent into a child custody case for the purpose of holding that step-parent in contempt of court for his or her contribution to any violation of child custody or parenting time orders applicable to his or her spouse’s children.
Cases involving the international abduction of a child are governed, among other laws, by the international Hague Convention provision on International Child Abduction in those countries that are recognized as official adopters of the Hague Convention. Although the international laws associated with the Hague Convention apply to parents who are awarded custody of a child and not, generally, to those parents granted visitation of a child, the Arizona Supreme Court concluded in the Abbott v. Abbott case that the existence of a ne exeat order, which is an order precluding a parent from removing the child from the state and/or country, constitutes an order granting the parent who only received visitation (i.e., not custody) of the child grant that parent the right to jointly share in the decision whether the child will be permitted to move the child to another country which, therefore, triggered the provision in the Hague Convention.
What Are Emergency Child Custody Orders in Arizona?
The court is required to order child custody and visitation schedules that the trial judge determines to be in the best interests of the children. If the court concludes contact between a child and a parent will place the child in imminent danger of serious harm, the judge may issue an order either terminating that parent’s access to the child or require the parent’s visitation to be supervised until further order of the court.
It is important to note the trial judge will, in most cases, apply the “best interest of the child” standard in normal circumstances. However, the Arizona Court of Appeals clarified in the case of Hart v. Hart that the court must apply a different standard if the judge issues an order terminating a parents visitation or ordering that visitation be supervised.
How Can You Change a Child’s Last Name in Arizona?
There are times when a parent wants to change their child’s last name. For example, a wife who wishes to return to her maiden name after a divorce may wish to have the child’s last name changed or if a parent establishes paternity of a child born out of wedlock a father may wish to change he child’s last name.
If the parents are in agreement, they may simply file for a name change with the court. If the parents disagree, they are entitled to a trial to present evidence supporting their reasons for wanting the name change or objecting to the proposed name change. The judge when than determine whether a name change is in the child’s best interests.
Please feel free to read a more in depth analysis from an Arizona Court Appeals decision in the Petrocelli v. Anderson case in which the appellate court sets forth the specific factors a trial court should consider when determining if a name change is in the children’s best interests.
Petrocelli v. Anderson | Changing a Child’s Last Name
Contact Our Scottsdale Arizona Child Custody Attorneys
Contact us today or call us at (480) 305-8300 to schedule your consultation with one of our Scottsdale Arizona Child Custody Attorneys regarding the divorce process or any other Arizona family law matter.