Child Custody Laws In Arizona
Arizona Child Custody Laws for 2019
Anyone attempting to establish, modify or enforce child custody orders in Arizona should familiarize themselves with the child custody laws in Arizona to understand your child custody rights.
You should understand the child custody laws that apply to your case even if you have hired an attorney to represent you. We are going to tell you everything you need to know about Arizona child custody laws.
Knowing the Arizona child custody laws will enable you to more actively participate in the decisions being made in your case and may even help you prevail in your child custody case.
We are going to cover everything you need to know about the types of child custody and the laws that will be applied to your case.
The Laws of Establishing Custody
The first step in dealing with child custody issues is the first time child custody orders are established in a divorce, legal separation or paternity case. When these cases are filed, the only thing the law provides is that each parent has an equal right to the care, custody, and control of their children.
Well, that’s not much help. You would not have a custody dispute if the parents agreed upon what that means in terms of a specific parenting time schedule. It does not mean that the parents are automatically by law entitled to an equal parenting time schedule.
Without a court order, you may be helpless to secure time with your children because all law enforcement will say to you if the other parent is withholding the children from you is “go to court and get a child custody order”. So, let’s talk about the laws regarding establishing child custody orders in Arizona.
The law in Arizona requires a married person to either file a Petition for Dissolution of Marriage, a Petition for Legal Separation, or a Petition to Establish Child Custody orders to obtain a child custody order. Once a petition is filed, neither parent’s rights are superior to that of the other parent. Until a judge issues temporary child custody orders, both parents have custody of the children when a divorce is filed. However, that means nothing if the parents do not agree on a parenting time schedule.
For children born to parents who were not married when the child was born, one of the parents must file a Paternity Complaint to establish paternity of the child, as well as child custody and child support orders. In paternity cases, a father can request to change the child’s last name. The court will change the child’s last name if the judge believes it is in the child’s best interests to do so.
The law in Arizona provides several alternatives to establish paternity outside of court, but a parent must still comply with the law requiring the filing of a Petition to get the issue of child custody and support before a Superior Court judge. Both parents are required to complete the legal requirement of attending the Parent Information Program class.
A Court’s Jurisdiction to Decide a Child Custody Issue in Arizona
It is important to know an Arizona court can only issue initial child custody orders if it has jurisdiction to do so. The basis for an Arizona court to exercise jurisdiction is found in the Uniform Child Custody Jurisdiction and Enforcement Act.
You are required to file an affidavit in a divorce, legal separation, or child custody case informing the court where the children have resided for the past five years. That child custody affidavit is required under the Uniform Child Custody Jurisdiction and Enforcement Act to enable a judge to determine if he or she has jurisdiction over the child custody issues.
That Act provides that an Arizona court has jurisdiction over child custody issues if Arizona is the “home state” of the child. Arizona would be the “home state” of children who have resided in Arizona for at least six months prior to the filing of the divorce or legal separation.
The Laws in Arizona Regarding Child Custody Agreements
Ok, you filed your petition, now what? The laws in Arizona, specifically Rule 69 of the Arizona Rules of Family Law Procedure permit both parents to enter into a written child custody agreement.
This presumes you are able to reach an agreement – we will get back to that in a moment. All you have to do is write out a parenting plan, consistent with the requirements of Arizona Revised Statute 25-403.02, with a form of order that both parents sign and submit to the court.
The judge assigned to your case must find that the agreement is in the best interests of your children and, viola, you are done. Congratulations, you just saved yourself a ton of time, money, and frustration having to fight it out in court. But, what if you can’t reach an agreement regarding the custody of your children? Well, it is off to court we go.
The Laws in Arizona if You Take Your Child Custody Case to Trial
If you cannot reach an agreement regarding the custody of your children, you are going to be facing two separate but related issues. Arizona child custody laws address both a parenting time schedule and an order regarding how major decisions affecting the child are made.
Generally, a parent gets sole custody or the parents share joint legal custody of their children. The laws on child custody changed the term from custody to joint legal decision making. Therefore, the court will award either sole legal decision making or joint legal decision making in a child custody case.
If you are awarded joint legal decision making, both parents must agree on where the children attend school, the doctors who will treat the children, and the children’s extracurricular activities. A parent with sole legal decision-making authority is allowed to make those decisions on their own. However, both parents are still entitled to access their child’s medical records and school records even if one parent was granted sole custody. As you can see, there is a large difference between joint custody versus sole custody.
The child custody law in Arizona is in Arizona Revised Statute Section 25-403. That law sets out the factors an Arizona judge must consider before issuing child custody orders. That statute set forth the factors a court must consider:
- The relationship the child has had with each parent;
- The relationship the children have with their siblings and other people in each individual’s home with whom the children will have contacts, such as friends, family, and others;
- The children’s adjustment in each of their parents’ homes, schools, and the surrounding communities;
- The wishes of the children, as long as they are of a suitable age to voice an intelligent preference;
- The court will consider evidence of the mental health and physical health of the children, as well as the physical and psychological health of the parents and anyone else in either parent’s home with whom the children will have contact;
- Which parent is more likely to encourage frequent and continuous contact with the other parent;
- The existence of child abuse or domestic violence;
Judges make child custody decisions based on what is in the children’s best interests. A judge in Arizona, likewise, cannot delegate the authority to make child custody decision to anyone else. The law in Arizona also provides that a parent may not be preferred based upon their gender. This means mothers are not favored in child custody cases in Arizona.
In more complicated cases, the judge may appoint a qualified expert to conduct a child custody evaluation. These are referred to as a Full Family Assessment. These experts are typically mental health professionals. They will conduct psychological testing on each parent. The will also interview both parents, the children, and anyone else who has important information regarding the children.
In contentious cases, a court may also appoint a Parenting Coordinator in your case. A Parenting Coordinator is a person to whom the parties address their disagreements regarding the children. The Parenting Coordinator will meet with both parents, consider the information provided by each parent, then issue a report with recommendations to the judge assigned to your case. The court will adopt the recommendations of the Parenting Coordinator unless a parent files a written objection to the report. If a parent files an objection, the court will schedule a hearing for the court to issue a ruling on the issue.
They will issue a written report to the court containing all of the information they gathered and his or her recommendations to the court regarding child custody and parenting time. A court may be inclined to rely pretty heavily on the opinions of these experts, so it is important you prepare for your child custody evaluation before your first visit with this expert.
So, you gather all of your evidence, prepare to testify before a judge, and argue why your wishes regarding child custody are better aligned with the child custody laws in Arizona than the other parent who is making their own “pitch” to the court. The more you are able to prove your proposal is in the best interests of the child the better your chances of prevailing.
We don’t want you to miss our reference to the “best interests” of the child. The law in Arizona requires the court to enter child custody orders that are in the best interests of the child. Every single child custody law is designed to require a judge to look deeply into what is in the best interests of the child.
Having said that, you should add the words “best interests” to each of the statutory factors listed above. For example, ask yourself “is it in the best interests of my child to spend more or less time with someone who has committed a significant act of domestic violence?”
Or, ask yourself “is it in the best interests to spend more or less time with a parent who speaks badly about the other parent or is trying to alienate the children from the other parent?” In fact, you should ask yourself these same questions, both positive and negative, to understand how the child custody laws work in Arizona.
A judge in Arizona has broad discretion to enter whatever child custody orders he or she believes is in your children’s best interests. Although a judge can order any form of legal decision making and parenting time schedule based on you and your children’s unique circumstances, there are some typical visitation schedules judges order.
Laws Regarding Modification of Child Custody in Arizona
Ok, so you got over the first hurdle of establishing the original child custody orders in your case. But wait, something has changed and those orders just don’t work for some reason or another. Or an emergency exists requiring you to seek emergency court orders modifying a child custody order.
Well, you have the same two options to modify parenting time or legal custody you had when you were establishing the initial child custody orders. You can enter into another agreed upon Parenting Plan, pursuant to Rule 69 of the Arizona Rules of Family Law Procedure, or you go back to Court.
The Arizona Rules of Family Law Procedure and Arizona Revised Statute 25-411 are the law that applies to modification of child custody orders. Here is what those child custody laws say about modifying a child custody order.
Child Custody Law Rule #1: You have to outline all the changes that have occurred since the last child custody order was entered.
Child Custody Law Rule #2: You have to allege and the court has to find that those allegations if proven to be true at trial, would constitute a substantial change in circumstances.
Child Custody Law Rule #3: You have to allege and the court has to find that those allegations will continue into the foreseeable future.
The law in Arizona (A.R.S. 25-411) allows a judge dismiss your request to modify child custody orders if the court reads your petition and determines that you have not complied with the legal requirements set forth in the statute cited above. You do not get a hearing – case over! You can appeal that dismissal, but that will take a long time to resolve and is certainly not what you want to happen.
Child Custody Laws on Relocation of a Child
Now that we have covered the laws on modifying a child custody order in Arizona, let’s talk about one common change in circumstances that will almost always be considered a substantial and continuing change in circumstances to modify a child custody order – a parent is moving to another state.
This situation is one of the most disruptive situations to exist, but there are both good and bad reasons a parent may want to move to another state with the children.
So, we covered the best interest factors in Arizona Revised Statute Section 25-403 the court must consider determining which child custody orders will be in the best interests of the children.
When a parent seeks to relocate with the children, those statutory factors still apply. However, there is an additional child custody law that applies to move children more than 100 miles from their current residence. Specifically, Arizona Revised Statute 25-408, known as the child custody relocation statute, adds a bunch of additional factors for a court to consider, which including the following:
- Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent’s right of access to the child;
- The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child;
- The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders;
- Whether the relocation will allow a realistic opportunity for parenting time with each parent;
- The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;
- The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations;
- The potential effect of relocation on the child’s stability;
So, that is a lot more factors to cover in a child relocation case. Child relocation cases are substantially more complicated than a regular child custody case. But, one thing remains the same. The applicable laws require that the court weigh all of these factors to determine if it will be in the children’s best interests to relocate to another state and, if so, the best long-distance parenting time schedule for the children and the other parent.
Child Custody Laws on Enforcing a Child Custody Order
So, you have gone through all the hard work of securing a child custody order, you have followed all the child custody laws, and . . . the other parent is violating the orders you worked so hard to secure. The good news is that child custody laws found in the Arizona Rules of Family Law Procedure allow you to file to enforce child custody orders.
You may also elect to argue the other parent’s refusal to comply with the orders is a substantial and continuing change in circumstances justifying the court granting you primary physical custody of your children. So, Arizona laws allow you to either enforce a child custody order or modify a child custody order if the other parent is violating your court orders.
Call the experienced Scottsdale and Phoenix Arizona child custody attorneys at (480)305-8300 at Hildebrand Law, PC to learn more about child custody laws in Arizona.
Chris Hildebrand wrote this article about child custody in Arizona to ensure everyone has access to information about child custody laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.
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