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Arizona Divorce FAQ's - Parenting

This is about custody and visitation after divorce in Arizona, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Arizona.

This information is from Alexander Nirenstein, the DivorceInfo Network Lawyer for Arizona. Click here to visit his firm's web site.

How does custody get decided as between a parent and a third party?

A third party non-parent such as a grandparent, stepparent, or an adult who has a significant relationship with the child can establish legal rights to custody and access.  A grandparent can file an action or join a divorce action between the parents under the Arizona grandparent rights statutes.  Typically a grandparent will be able to see the children on the days that their child has access and no special terms are required in the custody orders to insure this.  Third parties can establish legal rights by filing a legal action known as in loco parentis, under the Arizona in loco parentis statutes.  This in essence legally establishes the party to “be standing in the shoes” of a natural parent.

How does custody get decided as between parents?

In Arizona custody is established either by agreement of the parents or if the parents are unable to agree, the decisions of the court.  In either way the court uses a “best interest of the child” standard to determine the final custody and access (visitation) arrangements.  If the parties are unable to reach agreements regarding custody the court usually orders the parents to a custody evaluation by which a psychologist or counselor will meet with the parents and children, evaluate the circumstances and inform the judge what arrangements are in the best interest of the children.  The judge will make his decision after a review of the evaluator’s report, the testimony of the parties and any relevant witnesses and evidence.

What’s the terminology for custody?

There are two types of custody: sole custody and joint custody.  Sole custody means that only one parent has the final say in decision making for the children such as education, health and religion.  Joint custody is broken down into joint legal and joint physical custody.  Joint legal custody means that both parents have equal say in the decision-making regarding major decisions of the children, again, education, health and religion.  Joint physical implies the parents have a close to equal parenting time, but it is important to note that by law joint custody does NOT automatically mean a 50-50 time split between the parents, although it can be a 50-50 schedule.  The amount of time each parent spends with the child is not necessarily affected by the “joint” or “sole” designation, however it is usually assumed by people that sole custody implies the non-custodial parent has less time with the children then if it was joint custody, but this is not necessarily the situation in ever case.

In joint custody one parent may be designated the “primary parent”.  Under Arizona law the purpose of this designation was for the parent to be able to qualify for federal assistance.  Now it has developed an unwritten implication that the primary parent has more rights than the other parent.  This should not necessarily be the case.

Is there a presumption in favor of not changing custody arrangements?

Not necessarily, under Arizona law custody can be changed.  However, there is a one-year waiting period from the date of the last custody/visitation orders, before a party can request a change.   However, like most laws, there are exceptions and if it was an emergency situation, the court will modify custody at any time.   Of course what a parent considers and emergency may not be considered an emergency by the court.  To change a custody order the parent needs to file a petition for modification of custody with the court and show some significant change in circumstance warranting a change.  The court will then set a hearing to hear the circumstances alleged to warrant a change and make the appropriate modifications if necessary in accordance with the best interest of the children.  It is rare that the court will make a drastic change and usually just make minor changes to the custody orders.

What effect does the misconduct of one of the parents have on custody?

The graver the misconduct the more impact the misconduct will have on custody.  Obviously misconduct such as alcohol abuse, drug use, and violence will have affect.  Often whether consciously or subconsciously one parent denies visitation and communication between the children and the other parent.  This is known as parental alienation, and courts are now taking this situation more seriously.  The court may favor one parent over the other due to the fact that the other parent is serious about fostering a healthy relationship between the children and the other.   In fact  Arizona law provides that the judge should consider which parent will better facilitate a meaningful relationship with the children and the other parent when making custody orders.

What effect does the mental health of one of the parents have on custody?

Again the standard to determine custody is the best interest of the children.  So even if a parent has mental health issues that alone may not be reason alone for the other parent to be designated the primary or sole custodial parent.  If the mental health issues are serious, the judge may order that the parent’s visits with the children most be supervised.  The supervisor is usually a trusted family member, or a paid professional.  Today many people are on medication for mental or emotional health reasons and the mere fact a parent is on medication is not alone sufficient to limit their access to the children, again all decisions regarding custody and visitation are done considering the best interest of the children.

What effect does the preference of the child have on custody?

Many people erroneously believe that once a child turns 12 the child can pick which parent they live with.  This is simply not true.  A very mature five year old may have more input than an immature twelve year old.  The child’s wishes may be and often are considered, no matter how old the child.  In Arizona judges rarely will interview the children and children will rarely be allowed to testify in a custody case.  However a consular or custody evaluator can interview the children and those people will testify to the judge as to what the children’s wishes are.  Also the custody evaluator will consider the children’s wishes when preparing the custody recommendation to the judge.   Custody evaluators are very observant in spotting if a child has been wrongly influenced by a parent.

How does visitation get set?

Again like custody the parties can reach their own agreements among themselves and the agreement will be entered as a final order by the judge if it is in the best interest of the child.  If the parties cannot come to an agreement the judge will enter visitation orders that are in the best interest of the child.  Obviously the judge will look at things like the age of the child, geographic factors, the work schedule of the parents, the involvement the parents had in the day-to-day care of the children during the marriage when determining visitation.   Obviously a parent who has been very active in the day to day raising of the children should be able to maintain that relationship, and a parent that was less active might not suddenly be granted equal access.

Is there such a thing as "standard visitation"? If so, what is it?

In Arizona the court has established Model Parenting Plan Guidelines.  The Model Parenting Plan is broken down by the age of the child and provides several different arrangements per age bracket.

Because each families’ situation is unique it is hard to apply a “one-size-fits-all” approach to visitation and the court will look at each family on a case-by-case basis.  However a typical nominal access schedule should be every other weekend, one weekday night, a block of time for summer vacation, and alternating holidays.  This should roughly come to about one-third of the year, or approximately 120 days.  Parents should be flexible and allow deviation within their schedules, however some parents wish to maintain a strict schedule with little deviation.  Of course it is presumed that a more consistent and regular schedule is better for children, especially younger children.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

No answer.

What rules govern cases where the custodial parent wants to move away with the children?

Arizona law requires that if a parent wants to move the children over one hundred miles from their current residence that they most provide written notice to the other parent.  If the other parent objects to the relocation the objecting parent must file an objection with the court.  The court will set a hearing to determine whether the relocation is in the best interest of the child.  In essence custody and visitation is being re-litigated.

Relocation cases are very difficult for the court to decide.  Of course the courts do not have the authority to prohibit an adult from moving, but they can order that the children remain or move.  Obviously if non-moving parent has very little involvement with the children the court most likely will permit the children to relocate.  The judge will again look at the best interest of the children, but factors like employment opportunity and family support in the new area are considered.  Most importantly the court will consider the negative effect the relocation will have on the relationship between the children and the parent that remains.  Ironically if the parent and children do move, the parent remaining will usually get a very large block of time in the summer.  The court is very perceptive of a parent who wants to move to maliciously limit access with the other parent and those relocations should be denied.

What visitation rights do grandparents have, if any?

Grandparents do have rights and Arizona law provides specific rights for grandparents although limited.  Typically a grandparent will be able to see the grandchildren during the visitation days of the parent.  A grandparent can join a divorce or paternity action to enforce their rights, this is called joinder.  A grandparent can obtain visitation rights when the parent (the grandparent’s child) does not assert his or her own visitation rights.  Again the court will use a best interest of the children standard when entering orders regarding the grandparents.

Other issues in Arizona:

 

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