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Changes in Arizona’s Child Custody Laws

Statutory amendments that went into effect this year continue the trend toward gender neutrality in parenting time and decision-making

On January 1, 2013, a number of amendments to Arizona’s custody statutes went into effect. The changes continue to reflect a trend toward a gender-neutral presumption of equal parenting time and decision-making authority for mothers and fathers. Now, there is a greater emphasis on parental responsibility as well as parental rights. Following are a few of the most significant changes.

Decision-Making Authority and Parenting Time

The terms "legal custody" and "physical custody" were replaced with, respectively, "legal decision-making" and "parenting time." The goal was to eliminate the emotions and expectations attached to the term "custody." Custody battles often would evolve into a fight for "sole custody" instead of focusing on the child’s best interest. Furthermore, parents would confuse the terms "legal custody" and "physical custody."

Now the distinction is clearer. Per A.R.S. § 25-401, legal decision-making authority is "the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." A parent may either be granted sole or joint legal decision-making authority.

Meanwhile, parenting time is "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 and may make routine decisions concerning the child’s care."

Parenting Time vs. Visitation

Under the previous law, the term "visitation" was another source of confusion because it was used interchangeably with the term "parenting time." The problem with "visitation" was that it gave the impression that a parent merely had visitation rights with his or her own child. Now, visitation is defined as a "schedule of time that occurs with a child by someone other than a legal parent."

Similar to the old law, the new custody law encourages, but does not mandate, equal parenting time. A.R.S. § 25-403.02(B) provides, "the court shall adopt a parenting plan that … maximizes their respective parenting time. The court shall not prefer a parent’s proposed plan because of the parent’s or child’s gender."

There is, however, an express presumption of joint decision-making authority. A.R.S. § 25-403.02(B) also states: "Consistent with the child’s best interests in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child."

Best Interest of the Child

Arizona’s new law still requires judges to make decisions based on the best interest of the child. There are 11 factors that are relevant to the child’s physical and emotional well-being; some factors were removed and some were modified. The sequence of the factors changed slightly, but the factors are not listed in order of importance.

  • Removed: "The wishes of the child’s parents as to custody."

  • Modified: "The wishes of the child." This change seeks to specify that the child must be of suitable age and maturity if the court is to consider the child’s wishes as to custody and parenting time.

  • Removed: "Whether one parent, both parents, or neither parent has provided primary care of the child." However, the primary care of the child will be a consideration under the new factor: "The past, present and potential future relationship between the parent and child."

  • Added: "Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent."

Parental Conduct

There is a presumption that joint legal decision-making is not in the child’s best interest if one parent has committed acts of domestic violence or abused drugs or alcohol. The statute regarding domestic violence did not change, but the standard under the substance abuse statute was expanded significantly.

Under the previous statute, the presumption applied only if a parent was convicted of a drug offense. The new statute may apply if a parent has "abused drugs or alcohol or has been convicted of any drug offense … within twelve months before the petition … is filed." (Emphasis added.)

Attorney Fees

There are increased sanctions for litigation misconduct under A.R.S. § 25-415. The court may award attorney’s fees and costs if it finds that a party has done any of the following:

  • knowingly made a false claim pertaining to the best interest factors under A.R.S. § 25-403, domestic violence and child abuse, or substance abuse allegations;

  • knowingly accused an adverse party of making a false claim with the knowledge that the claim was actually true; or

  • violated a court order compelling disclosure or discovery under Rule 65 of the Arizona Rules of Family Law Procedure, unless the court finds that the failure to obey the order was substantially justified or that other circumstances make an award of expenses unjust.

Relocation

Under the new relocation statute, a parent with supervised parenting time does not need to be notified if the other parent wishes to relocate with the child. There is however, legislation that is being promoted to once again change this provision back to requiring notice no matter what type of orders are in place. A.R.S. § 25-408(A) requires that at least sixty days’ advance written notice be provided to the other parent before a parent may relocate outside the state or more than one hundred miles within the state if both parents are entitled to joint legal decision-making or unsupervised parenting time and both parents reside in the state. (Emphasis added.)

Grandparent Rights

The statute regarding in loco parentis rights and the statute regarding grandparent visitation rights were combined into one statute, A.R.S. 25-409 ("Third party rights"). The section regarding in loco parentis legal decision-making and placement of the child remains largely unchanged, but significant changes were made to the section regarding third-party and in loco parentis visitation.

First, subsection (C) removes the requirement of an in loco parentis relationship for a third party other than a grandparent to seek visitation rights with a child: "Pursuant to section 25-402, subsection B, paragraph 2, a person other than a legal parent may petition the superior court for visitation with a child." This opens the door to a substantial increase in litigation of third-party visitation claims, and likely was an inadvertent error by the Legislature.

Second, under subsection (E), the court is required to "give special weight to the legal parents’ opinion of what serves their child’s best interests." There are five factors the court may consider when determining whether visitation by a third party serves the child’s best interests (emphasis added):

  • The historical relationship, if any, between the child and the person seeking visitation.

  • The motivation of the requesting party seeking visitation.

  • The motivation of the person objecting to visitation.

  • The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.

  • If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship.

Conclusion

Because many of the changes to the statutes are subtle and somewhat technical, it is important to consult with a knowledgeable family law attorney who is well-versed in the statutory changes discussed above.