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