Arizona Child Custody & Parenting Time

Physical Custody / Parenting Time in Arizona

In the past, one parent would be granted the authority to make legal decisions for a child, while the other would be granted visitation time. The parent with authority to make decisions normally would also be the parent with primary physical custody of the child. However, that was changed in 2012 with the passage of SB 1127, which was effective on Jan. 1, 2013.

Under this Arizona law, child custody and visitation are now called decision-making and parenting time.

Both are now designed to ensure that children will have the ability to spend liberal amounts of time with both parents when it is in the children’s best interests.

Common Custody Arrangements

Legal and physical custody can take a few different forms. To establish joint custody means that a child will live with both parents, and the parents will share the power to make decisions for the child.

In situations involving sole custody, one parent will have the sole authority to make legal decisions, and the other parent might have more limited time to spend with the child or have supervised visits.

Some cases might include sole legal-decision authority for one parent over specific types of decisions with shared physical custody of the child. This might be ordered when both parents are fit, but the parents have strong disagreements over some aspect of the child’s upbringing.

For example, if a child has always attended private school, but the other parent wants the child to attend public school, the parent who wants the child to continue at the private school might be granted sole authority over the child’s education while sharing decisions about other aspects of the child’s life.

There are other ways that legal and physical custody might be ordered. To learn more about how to establish joint custody or some version of sole decision-making authority, reach out to a child custody lawyer at Colburn Hintze Maletta.

Custody Factors that Family Law Courts Consider

The following “best interest” factors are outlined in ARS 25-403 for courts to consider when makingdecisions about child custody:

• The relationship between each parent and the child in the past, present, and future
• The child’s relationship with others in each home
• The child’s adjustment to the current school, home, and community
• The child’s maturity and age to provide input
• The physical and mental health of all of the parties
• Whether domestic violence has occurred
• Whether one of the parents is more likely to encourage the child to develop a good relationship with the other parent
• Whether either parent made misrepresentations to the court to try to delay the case or secure custody
• Whether a parent used coercion or duress to try to secure an agreement
• Whether a parent has been convicted of false reporting of child abuse

If there is a history of domestic violence or child abuse, joint decision-making authority will generally not be awarded. A rebuttable presumption in favor of sole decision-making authority will also be created when a parent has abused alcohol or drugs or has been convicted of a drug offense in the past 12 months.

A parent who has been convicted of murdering the other parent or of a charged with sex offense will not be awarded unsupervised visits with the child unless the child would not be placed at risk under ARS 25-403.05.

If parents reach an agreement about custody, a child custody lawyer can submit the parenting plan to the court to establish joint custody. If an agreement cannot be reached, both parents will need to submit parenting plans to the court and litigate the issues. The court will then reach a decision following an evidentiary hearing.

An evidentiary hearing is a court proceeding where both parties are afforded equal time and opportunity to present evidence and testimony regarding their respective requests to the Court.

What Each Parenting Plan Must Include

Parents must submit parenting plans before the court will issue a custody order under ARS 25-403.02. A parenting plan must include the following information:

• Proposed visitation schedule, including holidays and vacations
• The proposed decision-making authority for each parent
• Conciliation plan for how disputes will be resolved and how breaches will be handled
• A process for a periodic review and modifications
• A statement agreeing that joint custody does not mean equal time
• A statement that the parents will comply with the notification requirements when a sex offender or person convicted of a dangerous crime against children has had or will have contact with the child

Emergency Child Custody and Temporary Custody Orders

Child custody disputes typically end in one of two ways.  First, a child custody dispute can be resolved through settlement, meaning the parents negotiate, sign, and submit to the Court a detailed parenting plan establishing agreed upon terms for parenting time and legal decision-making authority.

Second, if the parties are unable to reach a full agreement,  any remaining child custody issues will be decided by the assigned family court judge after a final trial. The process of reaching a final trial can take months, leaving the parents without any formal orders regarding legal decision-making authority and parenting time while the case is pending.

Temporary custody orders are meant to reduce any disruption that children might experience in their lives while their parents are going through a divorce since divorce can take months before the final orders are issued.

Temporary Orders solve this problem by giving the parents a way to obtain formal orders before the final trial. These orders only are only in effect while the divorce or child custody dispute is pending and are subject to revision at the final trial. 

Emergency child custody orders, or temporary orders “without notice”, are issued when a child is at risk of immediate and irreparable harm.

If your children are in danger because of the other parent, you should immediately contact Colburn Hintze Maletta for help with securing emergency orders. These requests can be heard within 24 hours. You will need to present evidence to the court that the other parent is dangerous because of domestic violence, child abuse, mental health problems, or substance abuse.

If you are granted emergency orders, a hearing will be scheduled within ten days to allow the other parent the ability to challenge the order.

Relocation of Ex-Spouse and/or Children

It is a good idea to include information in your parenting plan about what will happen if one parent decides to relocate with the child.

Parents must notify the other parents when they plan to move with children 100 or more miles away, or to a new state under ARS 25-408.

This written notice must be given no later than 60 days in advance of the planned move by certified mail. A relocation provision in a parenting agreement will be followed by the court as long as it is in the child’s best interests.

If the other parent sends you a notice that he or she plans to move with your child, you have 30 days to file an objection. A parent might be allowed to move temporarily for 45 days or less under one of the following circumstances:

• Both parents sign a written agreement consenting to the move.
• The parent who wants to relocate has sole or joint decision-making authority, the child primarily resides with him or her, and the move is required because of health, safety, eviction, or employment.

The court will schedule a hearing if the other parent objects to the move. The court will consider the best interests of the child, the reason the parent wants to relocate, and the effect on the child of spending less time with the other parent, among other factors.

If the court denies the petition, the parent can still move, but he or she will not be able to take the child with him or her. Unless the custody orders are modified, the moving parent still needs to follow them.

Establishing Paternity to Determine Custody

If a child’s parents were never married, the father may need to establish his paternity before being granted parenting time or legal decision-making authority rights. A father who was married to the child’s mother within 10 months before the child was born is presumed to be the father under ARS 25-814.

Paternity can be established when the parents were never married by the father signing the birth certificate or both parents signing a notarized affidavit acknowledging the father’s paternity.

Finally, either parent can petition the court to establish the child’s paternity. The court will then order a DNA test for the purported father and the child. If the results show a biological relationship of at least 95% or higher, paternity will be presumed.