In this article, we will discuss the following:
- Is Arizona a “Mother’s Rights” State?
- How is Child Custody Determined?
- What if the Parents Aren’t Married?
- What is Emergency Temporary Custody?
- What if Ex-spouse Wants to Move Out of State?
- What if Ex-spouse has Re-married?
- What if the Dept. of Child Services (DCS) is Involved?
Historically, the arrangements that were made concerning which parent could make legal decisions for children were called “child custody” in Arizona. The noncustodial parent would be granted visitation, which described the times when he or she would take the children for a visit. In many cases, fathers were granted visitation while mothers were granted legal custody. In 2012, Arizona changed its child custody laws with the passage of SB 1127. The new Arizona child custody law was effective on Jan. 1, 2013, and it made some important changes to how custody cases are handled in the state.
Watch this video of David Cantor explain Chid Custody Process and Laws in Arizona.
The statutes no longer refer to child custody or visitation. Instead, parents are awarded legal decision-making and parenting time. While this might seem like a cosmetic change, the law makes it likelier that both parents will be granted liberal time with their children. The law re-emphasizes awarding parenting time and decision-making in a way that is in the best interests of the child rather than in a way that prefers one parent over the other. The experienced family law attorneys at Cantor Law Group are able to explain the laws regarding parenting time and legal decision-making and to help people who are currently embroiled in a dispute with their estranged spouses or partner about their children.
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According to a report in AZ Central about SB 1127 when it was getting ready to be enacted, outside groups that collected data about awards of joint custody found that it was only granted in 5% of the child custody cases in 2002. By 2007, the percentage had increased to 15%, which was still very low. Since that time, research has demonstrated a positive correlation between joint custody arrangements and good self-esteem outcomes in children whose parents have separated. The literature has led to a change in the way in which child custody matters are handled in Arizona. An increasing number of courts in Arizona are awarding equal or nearly equal parenting time together with joint legal decision-making authority unless it is not in the children’s best interests.
Today, Arizona courts are no longer supposed to give preference to one parent over the other because of a parent’s gender under ARS 25-403.02. This statute directs judges to not choose a submitted parenting plan of a parent based on the parent’s gender. Instead, in cases in which the parents are not able to agree to a parenting plan, both parents submit proposed plans. The court then considers a number of factors when deciding how to award legal decision-making authority and parenting time. Courts are directed to award joint legal decision-making authority to parents when it is in the best interests of the child, and they are also supposed to maximize the amount of parenting time that each parent has with the child.
ARS 25-403 directs judges to consider a number of different factors when they are deciding how to award legal decision-making authority and parenting time. The factors are meant to help judges determine what is in the best interests of the child and include the following:
- The relationship between the child and parent in the past and present as well as the potential relationship in the future
- The relationship between the child and the parents, siblings, and others who may have an impact
- The adjustment of the child to his or her community, school, and home
- The child’s wishes if he or she is of a sufficient maturity level and age
- The physical and mental health of everyone who is involved
- Which parent is more likely to encourage a positive relationship and frequent visits with the other parent unless there is domestic violence
- Whether a parent misled the court in order to cause a delay or to make it likelier that the court would award custody to him or her
- Whether domestic violence has occurred
- Whether a parent used coercion and duress to secure an agreement for decision-making and parenting time
- Whether either parent was convicted of making a false report of child abuse
In addition, courts are directed to not award joint legal decision-making authority to a parent when there has been a history of domestic abuse perpetrated by him or her under ARS 25-403.3. Under ARS 25-403.4, there is a rebuttable presumption that a parent should not be awarded joint or sole legal decision-making authority if he or she has abused alcohol or drugs in the previous 12 months or has been convicted of a drug offense during that time. Finally, under ARS 25-403.5, judges are not to award sole or joint legal decision-making authority or unsupervised parenting time if the parent is a convicted sex offender or has been convicted of the murder of the other parent unless the court finds that such an award would not put the child at risk.
When a parent files a petition for a determination of decision-making authority and parenting time, the parents can try to negotiate an agreement. If an agreement is reached, they are able to submit a joint parenting plan and the agreement to the court. As long as the court finds that it is in the best interests of the child and that both parents agree that it is fair, the agreement and parenting plan will be granted. If an agreement is not reached, both parents can submit their own proposed parenting plans and present evidence at a trial. The decisions will then be left up to the court after weighing all of the relevant factors.
If you are not married, the court still applies the factors in making its determination about legal decision-making authority and parenting time. However, unmarried fathers must go through an additional step in order to gain rights under the law. Before an unmarried father can assert his rights as a father, he must first show that he is the biological parent of the child. There is a presumption of paternity if the alleged father was married to the mother of the child at any time during the 10 months before the child was born under ARS 25-814. The presumption also exists if DNA testing shows a biological relationship between the father and the child of 95% or higher.
A birth certificate that is signed by both parents also serves as enough proof of paternity for a father to assert his rights to seek legal decision-making authority and parenting time. It also serves as enough proof for a mother to seek child support. Finally, if the parents agree, they are able to sign and submit a notarized statement in which they agree that the unmarried father is the biological father, and that will suffice.
If one parent does not agree to paternity, the other one can file a petition to establish paternity. The court can then issue an order directing genetic testing of both the putative father and the child. If the testing reveals that there is a biological relationship, both parents can seek to establish their parental rights to parenting time, legal decision-making authority, and child support.
When people file for divorce with children in Arizona, they often file requests for temporary orders for child custody. These are orders that are meant to address where the children will live and how decisions will be made while the divorce cases are pending. The aim of temporary orders is to cause as little disruption to the children’s lives as possible. A couple of months can pass before temporary orders are issued.
By contrast, requests for emergency temporary custody orders are heard within 24 hours of filing. These are meant for situations in which the children may suffer substantial harm. To secure emergency orders, the moving party must be able to show that there is evidence of child abuse, mental health problems, or drug abuse. These types of requests are normally heard with only the moving party. If the judge grants emergency temporary custody order, a return hearing will be scheduled within one week to allow the other spouse to be heard and to challenge the order.
It is common after a divorce for a spouse to want to relocate to another state or another city within Arizona in order to have a fresh start. The parent might want to move to start a new career or for a new relationship. Whatever the reason for a move, a parent who wants to relocate with a child must give a minimum of 45 days notice to the other parent. The other parent may then challenge the relocation of the child and other parent in court.
Under ARS 25-408, a parent who wants to move must provide written notice by certified, return-receipt mail of his or her intention to move. This notice must be sent if the parent either wants to move to a different state or to a different city that is 100 miles or more away from his or her current location. The reason for this requirement is that relocations will disrupt the existing child custody arrangements. Once the other parent receives the notice, he or she has 30 days to file an objection to the relocation of the child.
Once the relocation petition has been filed, the moving parent may relocate with the child in less than 45 days on a temporary basis only if one of the following two situations apply:
- The moving parent has sole legal decision-making authority or joint authority and the child primarily resides with him or her only if the move is necessary for reasons related to health, safety, eviction, or employment; or
- The parents share joint decision-making and nearly equal parenting time only if both parents sign a written agreement allowing the relocation of the child.
If the other parent objects to the proposed relocation of the child, the court will hold a hearing. The judge will consider several factors when deciding whether to grant the child custody relocation petition, including the following:
- The best interests of the child factors as outlined in A.R.S. 25-403
- The reason why the moving parent wants to relocate
- Whether the parent is wanting to move in good faith or is instead simply wanting to interfere with the other parent’s relationship with the child
- Whether the move will result in an improvement in the child’s quality of life
- The current, past, and potential future relationship of the child with both parents
- The effects of seeing the nonmoving parent less frequently
- The relationship of the child to siblings and the community
- The child’s wishes if he or she is old enough and mature enough to give input
- Other factors that the court deems to be important
Courts do not have to grant petitions to relocate. If a petition is denied, it does not mean that the parent will not be able to move. However, it does mean that the parent will not be able to relocate with the child. If the court does grant the relocation petition, the parent will then be allowed to permanently relocate with the child. Unless the court also grants a modification of the parenting time and decision-making orders, the moving parent will have to continue following the existing orders.
When an ex-spouse remarries, it will not necessarily have an effect on child custody. The court looks at the best interests of the child by considering the factors that are listed in ARS 25-403. However, if the new spouse has a history of domestic violence, child abuse, or substance abuse, the court may determine that it is relevant and grant a petition for modification of the custody orders.
If a report of alleged neglect or abuse is made to the Arizona Department of Child Safety, the agency is required to investigate. If it determines that the child has been abused or has been severely neglected, DCS may remove the child regardless of any existing custody orders. The child may be placed with the other parent, a family member, or in a foster home to keep the child safe. The parent will then be given time to work on things to try to improve so that the child can be returned to his or her custody.
It is important to note that false allegations of child abuse or neglect are not looked on favorably by the family courts. One of the factors that judges consider is whether a parent has made false accusations of child abuse in order to gain an advantage for child custody determinations.
If the department determines that the allegations are founded, the other parent may file a motion to modify the existing decision-making and parenting time orders in a manner that will help to keep the child safe.
Contact Cantor Law Group
Disputes concerning children can be fraught with emotional conflict. People who are divorcing with children or who want to establish their parenting time and decision-making rights may benefit from retaining an experienced child custody attorney at Cantor Law Group. Contact us today to schedule a consultation by calling 602.254.8880.