For many parents who are separating or divorcing, the issues and concerns around how divorce will impact children is primary. Child custody is the term most parents think when they are making decisions about where children will live. In Arizona, physical custody of a child has been renamed “parenting time.” Legal custody, that is the right to make legal decisions on behalf of the child has been replaced with “legal decision-making.” These changes came into effect on January 1, 2013 in Arizona.
“Legal decision-making” means the legal right and responsibility of a parent to make all nonemergency legal decisions for a child. These decisions include everything regarding education, health care, religious training and personal care decisions.
“Parenting time” means the schedule of time during which each parent has access to a child at specified times. Each parent, during their scheduled parenting time, is responsible for providing the child with food, clothing and shelter. The parent during their parenting time makes routine decisions concerning the child’s care.
In the past, parents and courts used the word “visitation” to refer to the time the non-custodial parent spent with their child. In Arizona, visitation now refers to time a child spends with someone other than a legal parent. Arizona law also outlines the rights of a person who is not a legal parent but who may have a relationship with the child similarto that of a parent.
The Best Interests of the Child
When making decisions about legal decision-making and parenting time, the most important consideration for the court is the best interests of the child. The court will consider all factors that are relevant to the child’s physical and emotional well-being.
The courts and legislature are interested in maintaining and supporting relationships between parents and children, as long as they serve the best interests of the child. What used to be a presumption of placing custody with the mother has evolved into greater consideration of the past, present and potential future relationship between the parent and the child.It is also important for the court to take into account the interaction and interrelationship of the child with the her or his parent or parents, siblings and any other person who may significantly affect the child’s best interest.
How a child adjusts to his or her home, school and community is another consideration of the courts in determining legal-decision making and parenting time. If a child is old enough and mature enough, her or his wishes will be taken into account when the court decides on legal decision-making and parenting time.
Because the best interests of the child also depend on the mental and physical health of all individuals involved in the family, the courts will take these issues into consideration. The court will also recognize which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. However, if a parent is acting in good faith to protect a child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse the court will not hold that against a parent who is attempting to limit contact with the other parent.
If there has been child abuse or domestic violence the court will, of course, include these issues in making its decision. Or if a parent was convicted of an act of false reporting of child abuse or neglect, this will be part of the decision.
If a parent intentionally misled the court in order to increase the legal costs of another parent, cause unnecessary delay in the case, or to try and persuade the court the prefer their parenting plan, the courts will also take this into consideration. When a parent tries to coerce another parent this will also be a part of the courts deliberation process.
The courts encourage parents to come to agreement about legal decision-making and parenting time. There are times, however, when parents are unable to come to a mutual agreement. The Arizona law requires that each parent submit a parenting plan for the court to consider.
The court will adopt a parenting plan that is consistent with the child’s best interests and provides for both parents to share legal decision-making and that maximizes parenting time for each parent. Arizona law also specifically rejects making a decision about legal decision-making and parenting time because of the parent’s or the child’s gender.
What Should Be in a Parenting Plan?
Arizona law outlines what must be included in a parenting plan. The items that must be addressed include:
1. A designation of the legal decision-making as joint or sole.
2. Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training.
3. A practical schedule of parenting time for the child, including holidays and school vacations.
4. A procedure for the exchanges of the child, including location and responsibility for transportation.
5. A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.
6. A procedure for periodic review of the plan’s terms by the parents.
7. A procedure for communicating with each other about the child, including methods and frequency.
8. A statement that each party has read, understands and will abide by the notification requirements of Arizona law.
If parents are unable to agree on any element to be included in a parenting plan, the court will determine that element. The court may determine other factors that are necessary to promote and protect the emotional and physical health of the child.
It is important to remember that Arizona law also states that shared legal decision-making does not necessarily mean equal parenting time. So if both parents agree to joint legal decision-making, they may decide to split parenting time according to what is best for the child, which doesn’t necessarily always mean a 50/50 split.
The Divorce Guy has the experience to prepare all of the legal documents you will need. We also will take care of filing your documents at the court so you don’t have to spend your day trying to find the right place to file your paperwork. Because determining legal decision-making and parenting time can be stressful, we serve the other parent and make sure the court receives “proof of service.”
In addition we keep track of all the deadlines and notify you of the legal decision-making hearing and prepare all of the documents required for your court hearing. If you have questions or concerns that are not answered here then please call (520) 327-1085 in Tucson and we will do our best to answer them.