Child custody issues can arise due to several reasons. You could be going through a divorce or have an unresolved paternity case. Therefore, you need to have a custody arrangement in place when you aren’t living with or married to your child’s father or mother.

Arizona courts are inclined to protect children’s best interests with separated spouses, and you should move to protect your rights as a parent too. Ruling the most appropriate child custody order is crucial for every party involved. Thus you need to have expert legal representation and one you can also trust all through your case. At Phoenix Family Attorney, we handle child custody cases and other family law matters, such as child support and divorce. Contact us any time if you have a case or want to know more about our procedures and how we will protect your legal rights during a child custody case.

An Overview of Arizona Child Custody Laws

We have two child custody types in Arizona, traditionally known as legal and physical custody. Arizona statute now calls these custody types legal decision-making authority and parenting time, respectively. Parenting time is the amount of time every parent spends with the child physically. On the other hand, legal-decision making authority is when every parent assumes the responsibility and power to make critical decisions regarding the minor’s life, for instance, decisions about religious upbringing, medical care, and schooling.

Arizona statute provides that courts examine several different factors in child custody cases when deciding what arrangements are in the child’s best interests. Some of the factors include:

  • How the minor interacts with either parent, siblings, and family members
  • The minor’s past relationship with each parent
  • The child’s connection and adjustment to a particular school, home, or community
  • The mental and physical needs of the child and both parents
  • Whether either of the parents was involved in domestic violence, child abuse, spousal abuse, or made false violence or abuse reports
  • Whether any of the parents attempted to force the other one into consenting to a given custody arrangement
  • Whether one parent is willing to help nurture a meaningful relationship with the parent (absent abuse or domestic violence situations)
  • The minor’s wishes if he or she is of age to express his or her choice
  • Any other factor the courts deem relevant

When a judge would automatically lean towards giving full child custody rights to the mother are long gone. Instead, Arizona courts deduce that parenting time/physical custody with the two parents serves the minor’s best interests except if it is a case that involves abuse or domestic violence.

Reaching a Custody Determination

Most parents can work together to design a legal decision-making arrangement and parenting time plan that will work for both of them and everyone else involved. Just because you don’t agree at the beginning doesn’t mean it is impossible. Your spouse’s attorney and your lawyer can work towards and negotiate a mutually beneficial agreement. This way, both of you will be able to resolve the child custody issue most efficiently and civilly possible. Your attorneys will assist you in drafting a comprehensive parenting schedule, which the judge must review.  He/she will then approve the arrangement should it find that your agreement serves the minor’s best interests.

But if you and your spouse can’t agree at all or the judge doesn’t believe the parenting plan you two agreed upon doesn’t serve the minor’s best interest, the court will have to give its decision concerning the custody arrangement. Each of you, represented by your lawyers, will be granted the opportunity to present your case before the judge in support of your desired custody arrangement. After which, the judge reviews the proof and orders a particular legal decision-making and parenting time arrangement.

It isn’t preferable to have a judge who doesn’t know your child or you making critical decisions concerning your future relationship. Whereas a trial may be unavoidable in your custody case, your attorney can help put the situation under control by working towards an appropriate settlement agreement.

Changing or Modifying a Child Custody Order

Although a child custody arrangement can work for several years, circumstances may change, requiring the parenting time plan and other arrangement details to change. In case you and your partner agree to these changes, you’ll be required to present them to the judge to modify the custody order formally. If any of you is disputing the changes, they will have to file a petition in court for the modification to happen.

Arizona statute is specific about when you can bring a petition in court for custody modification purposes, including:

  • Within a year, if there’s a reason for you to believe the other parent’s environment is a threat to the minor’s well-being and health.
  • Within six months of the custody, if your partner refuses to adhere to the order.
  • After a year, if either of you proposes changes depending on a significant change in different circumstances.
  • Any time after the first order if there’s proof of domestic violence, child abuse, or spousal abuse since the execution of the order

Additionally, there are special provisions concerning military parents’ rights against permanent modifications because of deployment. It’s worth understanding that courts won’t routinely agree to changes on parents’ whims. Instead, you need to have specific reasons that support your need for the modification. However, the bottom line is that creating a proper custody arrangement from the start can help minimize the need to modify it as time goes.

When Does the Judge Consider a Minor’s Preference?

As we mentioned, Arizona law dictates that the judge will bear in mind a minor’s opinion on custody matters if they are of age to make intelligent opinions. Arizona does not have a particular age when a judge must consider a minor’s say. Thus, judges must make a case-by-case determination depending on the specific situation. However, judges have considered opinions of minors who are as young as seven years old.

For the judge to consider a child’s opinion, it has to be an intelligent one. Put otherwise, the child cannot base his/her decision on a trivial thing, for instance, which parent permits them to choose what meals to eat or which parent’s house has better toys.

When determining whether the minor’s opinion should affect the custody-related decisions, the court will consider whether his/her reasoning results from something permanent.  For instance, it will consider whether the child has a good relationship with either parent over the other and not something that will likely change suddenly.

The judge also needs to consider whether any parent pressured/coerced the minor into giving an opinion in a given way. Judges would be wary about taking a minor’s custodial opinion if either parent coached them before their interview. 

Note that the judge has to consider the minor’s preferences if they satisfy the requirements. On the other hand, he/she does not have to consider them if they aren’t in the minor’s best interest. In Arizona, the child’s opinion does not override the other factors of the custody case.

Arizona courts will not force a minor to testify about their custodial opinions in court. Additionally, judges are typically sensitive to the difficulties children would face stating their preferences before the parent. Judges have the discretion to interview the minor in court chambers to see their preferred visitation and custodian schedule. In this case, a court reporter usually records the interview, even though the judge might order the court to keep it private (seal it) if it serves the minor’s best interest. The child’s parents may also jointly agree to permit the judge to interview their child off the record.

Alternatively, the court judge could appoint an expert, for instance, a guardian ad litem (child’s lawyer) or custody evaluator, and allow them to give testimony regarding the minor’s preference. When the judge appoints an expert, the parent’s lawyers are usually allowed to cross-examine them, just like they would any other witness.

Joint Custody vs. Sole Custody

Understanding the difference between joint custody and sole custody is critical if you’re going through a divorce or family law matter. Joint custody entails sharing of parental responsibilities for your child. That is, parents are actively involved in the minor’s upbringing. Joint custody in Arizona can be joint legal or joint physical custody.

We mentioned that legal custody entails the obligation to make primary decisions concerning a minor’s life, including deciding on critical aspects like religion, schooling, counseling, medical care, housing, etc. Therefore, joint legal custody means that the two parents have the legal responsibility to make decisions on these aspects and neither parent’s rights are superior to those of the other. However, in the child’s best interests, the judge may order that given decisions be made by only one parent, even though it’s joint legal custody.

Joint legal custody doesn’t necessarily mean that a child will spend equal time with each parent. It means that parents will need to consult with each other on critical issues to do with their child. Should one parent start making significant decisions without telling the other, he/she can be held in contempt of the law. Both parents resolve at the custody settlement what topics won’t or will have to be discussed jointly in the future.

We also discussed physical custody as the place where the child will live and the parent with whom he/she will live. Therefore, unless one parent is considered unfit, Arizona recognizes joint physical custody whereby the division of time is split between parents in a way consistent with the child’s best interests. This means that the minor will generally move back and forth between his/her parents’ residences.

Joint custody is the best arrangement to show a child that he/she is more important than the differences their parents have if the two parents can be friendly with each other. On the flip side, it can place a child in the crossfire of continued complex litigations and disagreements. 

Arizona courts encourage parents with either joint legal or joint physical custody to resolve their disagreements amicably. However, they may also file a petition in court when they want to decide that it’s in the child’s best interests when an agreement isn’t possible.

Sole custody is whereby only one parent has an entire say over the child. Unlike joint custody, sole custody in Arizona can be sole legal and sole physical custody. Sole legal custody means that only one parent is responsible for making critical decisions concerning the child’s life. That even though both parents can discuss the issues impacting the minor, the custodial parent is the one with the power to make final decisions if the parents disagree.

Sole legal custody could be an ideal option for the parent who made many primary and daily decisions while still in the marriage. However, it doesn’t mean that the non-custodial parent cannot make fundamental daily decisions when the child is under their care.

If the court grants one parent sole physical custody, it means that child will live with the parent. However, it doesn’t necessarily imply that the non-custodial parent won’t have the opportunity to see the child. It only means that the court recognizes the custodial parent as the primary guardian. In a case like this, visitation rights will usually be arranged so the non-custodial parent can spend time with the child regularly, for instance, every other holiday or every other weekend. As far as sole physical custody is concerned, the custodial parent can lawfully move from one state to another or one country to another without first consulting the non-custodial parent, assuming no other legal custody rules are violated.

It is not uncommon for physical and legal custody to work separately as far as child custody agreements are concerned, even though both entail who has rights over a minor. The court may grant you sole legal custody and deny you sole physical custody. It may also award joint physical custody and deny joint legal custody. Neglect, distance, and the amount of time a parent can spare to spend with the child should all be considered when deciding on physical and legal custody.

Note that Arizona law doesn’t favor one type of custody over another. Additionally, the judge may not prefer one parent over the other as custodian due to their sex.

Parenting Time

A child needs to develop a healthy relationship with his/her two parents. Therefore, when you don’t live together with your child’s mother or father anymore, the minor ought to have the chance to spend quality time with them.

The law gives parents reasonable parenting time rights to ensure the child continually and frequently interacts with them. But parenting time could be denied or limited if awarding it would jeopardize the minor’s emotional, moral, mental, or physical health. 

The parenting time amount the court awards is based on the minor’s developmental stage and age. For instance, if it’s a newborn, lengthy parenting times might not be ideal, though frequent short visits might be awarded.

Arizona law dictates that in many cases, the non-custodial parent has a right to reasonable parenting time to ensure the minor has frequent, continuing contact and interaction with them. Therefore, when drawing a custody order, courts also decide what parenting amount is appropriate.

Reasonable parenting time refers to the amount of time a parent spends with a minor, which is average for many cases. Even though this term is often used in parenting schedules and court orders, a parenting time decision is based on every family’s situation, bearing in mind the child’s developmental stage and age. When parenting time is defined as reasonable, it’s hard to predict exactly how long or when parenting time needs to occur.

When coming up with a parenting plan, parents are advised to decide specifically for how long and when the parenting time would be, including allocating and handling special occasions such as school breaks, holidays, birthdays, and vacations.

You’re allowed to agree on what kind of parenting-time plan is best for your child. But if you can’t agree or your agreement isn’t working, the court will intervene. Note that only the Arizona Superior Courts have the power to decide on matters of parenting time and issue a schedule that can work if you disagree or one of you doesn’t comply with the parenting-time plan.

If your partner disobeys the parenting-time schedule, you can’t deny them their court-ordered time, cease paying child support, or resort to other self-thought actions to punish them. If you do so, you’ll also be violating the court order. Rather, you should seek the court’s help by requesting enforcement.

In particular cases, Arizona law grants great-parents and grandparents rights to parenting time if it’s in the child’s best interests. Per ARS 25-409, the following are conditions under which someone who is not the child’s parent can petition to have rights to parenting time:

  • One parent has to be missing for at least three months or dead
  • The minor’s parents need to have divorced for three months at the minimum
  • The child must’ve been born out of wedlock

Arizona statute also dictates that an individual who stands in loco parentis to a minor may request parent time. For you to be in loco parentis, the child must’ve treated you as their parent, and you must’ve established a meaningful relationship with them for a significant period. Other requirements also apply, per ARS 25-415.

At times, to prevent any harm to a minor’s emotional development or health, the court must direct that a mental health expert or social service organization be involved to ensure custody and parenting time orders are obeyed. In a case like this, the judge may direct that the organization or someone else oversee or supervise the parenting-time periods. For particular cases, a third party usually supervises exchanging the child to minimize conflict between parents, which the minor could be exposed to if there are no supervised exchanges.

Custody and Parenting Time for Unmarried Parents

In Arizona State, unmarried parents have the same protections as married parents regarding child custody and parenting time rights. The primary aspect that courts bear in mind when deciding on these matters is whether the outcome is in the child’s best interests, not either parent.

When parents aren’t married to one another, and there’s no court order in place that establishes parental rights, the child’s mother is automatically granted sole legal custody. This means she’s entitled to make all decisions on the child’s behalf without consulting his/her biological father. The child’s biological father doesn’t have any legal rights to either parenting time or custody until paternity has been established. This also means he doesn’t have any legal responsibility for paying child support.

After determining paternity, parenting time and custody for unmarried parents are decided only in Superior Courts, just like other cases. The court has to make its decision depending on the child’s best interests.

Note that until paternity is established, Arizona law presumes that a mother should have custody of the child. But after paternity establishment, the law provides that except if the judge directs otherwise, child custody should be granted to the parent who the minor has lived with for most of the six months before the court determines paternity. Therefore, if the father seeks custody rights, the mother is also advised to do so. Since the judge’s decision on parenting time or custody should depend on the child’s best interests, he/she may direct that both or either parent have custody in case it’s rightfully so.

Contact a Skilled Child Custody Lawyer Near Me

Our lawyers at Phoenix Family Law Attorney help our clients through all kinds of emotionally involving cases, including child custody, support, visitation, and divorce. Firstly, we become acquainted with you to understand your goals better; then, we work towards a resolution tailored to your situation and needs. We know that it’s possible to reach a settlement agreement in some cases and impossible in others. Either way, we’re prepared to defend your constitutional rights. If you have a child custody case or going through a divorce in Phoenix, contact us at 888-888-8888 today.