Legal FAQ: Child Custody and Visitation in Arizona
These Frequently Asked Questions are intended as a general guide to issues within the court system of the State of Arizona. Laws in other states may vary—consult your personal attorney or Hildebrand Law for more information any any of these topics.
What are the major issues involved in child custody in the State of Arizona?
The judge assigned to your case will decide each parent's role in making major decisions affecting your children and each parent's rights to parental access with the children. 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 and parental access of a child. Here are some of the issues involved:
- The wishes of the parents
- The child's wishes
- How the child interacts with each parent and any other children in the family
- The health of each person (parents and children)
- The child's adjustment to home, school and community
- Which parent has been primarily responsible for providing care for the child in the past
- 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 custody and/or access of the child
- Whether either party has raised a false allegation of child abuse against the other parent
The court will also consider whether either parent has committed an act of domestic violence or has a substance abuse problem. The court generally will consider the presence of such factors as being contrary to the child's best interests.
If the parents are unable to reach an agreement regarding custody and parental access of their children, the court may order the parents to participate in mediation to help them reach a compromise. 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.
What are the different types of custody?
The term custody has been grossly misunderstood and misused. Within Arizona law, the term custody really pertains to two distinct and very different issues:
- How major decisions affecting the children—such as their education, health care, and religious upbringing—are made
- 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 legal custody and may be either sole or joint legal custody. The second issue regarding parenting time is referred to as physical custody which can vary greatly depending upon a myriad of factors.
What is sole legal custody?
A parent granted sole custody 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 extra-curricular activities the children will participate in—regardless of the opinion of the other parent. 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 directly from the provider of those services.
What is meant by joint legal custody?
Parents sharing joint legal custody 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.
What is parenting time?
Parenting time refers to the scheduling of access between the parents and their children. The parenting time schedule is not affected in any way by the designation of legal custody as either sole legal custody or joint legal custody. Simply stated, the form of legal custody has no bearing upon the amount of time either parent spends with their children.
Does the form of legal custody affect whether I may obtain copies of my child's medical or educational records?
Both parents are entitled by statute to obtain copies of their children'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 custody or one parent has sole legal custody of the child. There are, however, some exceptions to this general rule such as when release of the child's records to a parent may actually place that child in danger of harm by the parent requesting the records.
What happens if one of the parents intends to move from Arizona with the children and the other parent does not agree with the proposed move?
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. 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.
How do I establish legal custody and access rights to a child when the parents were not married?
A biological father of a child who is born out of wedlock has no legal rights or obligations towards the child until such time his paternity is established. There are several ways to establish legal paternity but the most common approach is to file a request with the court to enter a Judgment of Paternity. If the court issues a Judgment of Paternity, that parent immediately receives all of the legal rights and responsibilities as any other parent. The court will very likely order DNA testing if either party questions whether the alleged father is truly the biological parent of the child.
What can I do if I don't like the parenting time rights written in my divorce decree?
You can ask that the court modify the orders. Custody and parenting time can be changed until the child turns 18. However, Arizona law does impose some time limits. For example custody cannot be modified for one year after the court last entered a custody 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 so long as a party is able to demonstrate that a substantial and continuing change in circumstances has occurred which justifies a change in the access schedule. Generally, the courts do not like to see parents repeatedly going back to court seeking changes in the orders unless a real and significant change in circumstances has occurred. You may not want to file for modification unless the problems are significant and you have at least attempted to solve the problems before going to court.
What will the court do to a parent who does not allow reasonable parenting time?
Arizona Law states: "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." (A.R.S. 25-408)
The court will order the parenting time the judge feels is in the child's best interests. The parent who does not follow the parenting time order can be found in contempt of court, can be forced to pay a financial sanction, can 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. That parent can also be assessed attorney's fees and court costs. The court can also order make up access 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. Parenting time interference is also a crime when court ordered specific parenting time is refused. Specific refers to times, days or dates, places, etc. Reasonable parenting time is not specific parenting time.
The information on HildebrandLaw.com is not intended to be legal advice. Visiting this site does not create any legal relationship between Hildebrand Law, P.C., or any attorney and the user. For personal legal matters, please consult your attorney, or contact Hildebrand Law for an appointment. Though we endeavor to ensure the information on this site is as accurate as possible, we make no warranty, expressed or implied, about the accuracy or reliability of the information on HildebrandLaw.com or at any other website to which this site is linked. |
