If you and your spouse are getting a divorce and have children, ensuring that they continue to be well looked after is one of the most important things to consider. In the state of Arizona, the term ‘legal decision making’ has been used instead of ‘child custody’ since 1 January 2013.
The consequence of this change is that Arizona courts don’t decide who gets custody of the children; instead, they determine who has legal decision making authority over the children. In essence, parents or guardians are now looking to gain the right to make decisions regarding the care and welfare of the child including decisions about religious training, healthcare and education.
Best Interests of the Child
Arizona courts must determine legal decision making authority based on the child’s best interests with the following factors taken into consideration:
- The wishes of the child (if of suitable age and maturity) & each parent.
- The relationship between the child and each parent (past, present and future).
- The child’s interaction and interrelationship with its siblings and any other individual who might significantly impact the child’s best interest.
- How the child adjusts to home, school & community.
- The mental and physical health of those involved.
- The parent who is most likely to allow the child to have frequent and meaningful contact with the other parent.
- If the child has ever been the victim of child abuse or domestic violence.
Further information can be found at 25-403 of the Arizona State Legislature (A.R.S).
Joint & Sole Decision Making
Joint decision making involves both parents agreeing to work together in order to make the right decisions regarding their child. Sole decision making sees one parent make decisions regarding the child’s welfare and life without consulting the other parent.
The court will consider following factors when deciding on joint decision making:
- Agreement/disagreement between both parties regarding the proposition.
- If the parents disagree, whether this disagreement is based on an issue not related to the child’s best interests or is otherwise unreasonable.
- If a joint arrangement is even feasible.
- The ability of each parent to communicate with one another.
An Arizona court will only agree to joint decision making if both parents agree and provide a written parenting plan (as well as determining if the arrangement is in the best interests of the child).
This plan includes the rights and responsibilities of each parent in relation to the child’s healthcare, education, physical residence and the way in which disputes are to be handled. If there are disputes they will normally be dealt with via mediation or arbitration.
An Arizona court will never rule in favor of a parent if it believes there is a significant danger to the child. Here are some of the factors that determine whether or not a parent is allowed to have legal decision making powers:
- The parent’s history of drug offenses.
- If the parent is a convicted sex offender.
- If the parent has a murder conviction.
In most cases, an Arizona family court will consider counseling session attendance and the type of criminal offense before deciding if decision making rights should be denied.
You can also look for temporary orders if you don’t want to wait until the end of the case to deal with certain issues such as decision making authority, parenting time, child support and spousal maintenance.
Third Party Legal Decision Making Rights
In Arizona, a ‘third party’ (someone other than the child’s legal parent) can petition for legal decision making authority or visitation. In order to do this, the third party needs to show that
- He/she is in loco parentis to the child. This term comes from the Latin for ‘in place of the parent’ and refers to a person who assumes parental status and responsibilities for the child.
- It would not be in the child’s best interests to be placed in the care of either parent seeking legal decision making powers.
- A court of ‘competent jurisdiction’ has neither entered or approved an order relating to parenting time or legal decision making in the 12 months before the Third Party made his/her petition. This timeframe may be circumnavigated if the Petitioner can prove that the child’s existing environment is endangering its mental, physical or emotional health.
Additionally, the Third Party must also prove one of the following:
- At least one of the child’s legal parents is dead.
- The legal parents of the child were not married to one another when the Petition was filed.
- A Dissolution of Marriage or Legal Separation of the child’s legal parents is pending at the time the Petition was filed.
You can read more about Third Party rights at 25-409 of the A.R.S.
What Is An Ex-Parte Order?
This is a decision made regarding a party without a hearing taking place. An Ex-Parte order is typically based on the sworn affidavit of the party that requested the order and no notice is given to the other party.
What Happens If The Legal Parents Disagree?
Unfortunately, this will lead to a trial where both parties must present evidence to the court in order to decide who gains legal decision making powers over the child.
What Is Parenting Time?
This refers to the time a parent is allowed spend with a child; the decision is made by an Arizona family court.
Can I Modify Orders For Parenting Time & Legal Decision Making?
Yes, in one of the following cases:
- If the court’s previous order relating to custody has been in place for more than 12 months.
- If a parent fails to comply with a joint decision making order 6 months after it was entered.
- If you believe the child’s emotional, physical, mental or moral health is being endangered by its current environment. In this instance, you can file a motion to modify the order along with an affidavit outlining your belief that the above is true.
- If there is evidence of child abuse, spousal abuse or domestic violence at any stage after a joint decision making order has been entered.
You can read more on this at 25-411 of the A.R.S.
Does The Child Have To Appear In Court?
The vast majority of parents are concerned about this issue and don’t want their child to be put through the strain of a court appearance. Fortunately, this rarely happens; instead, your child may go through a ‘camera interview’ with a judge. This is a private session which is not seen by the parents or their attorneys. Only children deemed able to articulate facts or demonstrate a clear knowledge of what is happening will be asked to do a camera interview.
Legal decision making cases can be complex and are often physically, mentally and emotionally exhausting. By hiring an experienced Arizona attorney, you will be able to relieve some of this pressure.
Please remember that Arizona statutes ensure there is no favoritism in legal decision making cases which means the gender of the Petitioners has no bearing on the outcome.