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FAMILY LAW FAQ

Legal Decision-Making and Parenting Time

Will the court award me sole custody of my child?  •  What does the court consider when determining parenting time?  •  What is a Parenting Plan?   What parenting time rights do grandparents have?  •  Will the court allow me to move out of state with my child(ren)?  •  How do I modify legal decision-making or parenting time?

1. Will the court award me sole custody of my child?

As of January 1, 2013, in Arizona the terms “legal custody” and “child custody” were replaced with the term “legal decision-making.” Legal decision-making is the legal right and responsibility to make all non-emergency legal decisions for your child, including those regarding education, health care, religion and personal care decisions. Joint legal decision-making means that both parents share decision-making, and sole legal decision-making means that one parent has the legal right to make major decisions for the child without the other parent’s input.

Courts will order that both parents share legal decision-making unless it is contrary to the child’s best interest. If you desire sole legal decision-making authority, it is important that you speak with an experienced family law attorney who can assess the merits of your case. Courts will consider several statutory factors relevant to the child’s physical and emotional well-being when determining what is in the child’s best interest:

  • The past, present and potential future relationship between the parent and the child.

  • The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

  • The child’s adjustment to home, school and community.

  • If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

  • The mental and physical health of all individuals involved.

  • Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

  • 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.

  • Whether there has been domestic violence or child abuse in accordance with relevant statutes.

  • The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

  • Whether a parent has complied with and taken the required parent information program class.

  • Whether either parent was convicted of an act of false reporting of child abuse or neglect.

There is a rebuttable presumption against an award of joint or sole legal decision-making authority to a parent who has committed an act of domestic violence against the other parent. Similarly, there is a rebuttable presumption that it is not in the child’s best interest for a parent who has abused drugs or alcohol and/or has been convicted of a drug offense within the past 12 months to be awarded sole or joint legal decision-making authority.

2. What does the court consider when determining parenting time?

When determining parenting time, the court considers the same “best interest” factors that it uses to determine legal decision-making authority. Courts will order that parents share equal parenting time unless it is contrary to the child’s best interest. A parent who is not granted sole or joint legal decision-making is entitled to reasonable parenting time to ensure the child has “substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child’s physical, mental, moral or emotional health.”

3. What is a Parenting Plan?

A Parenting Plan establishes specific parameters for legal decision-making and parenting time. During each parent’s designated parenting time, he or she is responsible for providing their child(ren) with food and shelter and making daily decisions concerning the child(ren)’s care. If you cannot agree on a parenting plan, you and your spouse will need to submit proposed parenting plans to the court.

A Parenting Plan should include the following:

  • a designation of legal decision-making;

  • a parenting time schedule including holidays and school vacations;

  • a procedure for exchanging the child;

  • a procedure for modifying the parenting plan and a procedure for periodic review; and

  • a procedure for communicating with each other about the child.

4. What parenting time rights do grandparents have?

Grandparents may file a petition to establish visitation rights when the child’s parents’ marriage has been dissolved for at least three months, a parent of the child is deceased or missing for at least three months, or the child was born out of wedlock.

Because parents have a constitutionally protected right to raise their child, the grandparent will need to overcome the presumption that the parent’s decision regarding visitation is in the child’s best interest and show that the grandparent has been denied access to the child. If the grandparent is able to rebut this presumption, the court will consider the following factors in determining whether grandparent visitation is in the best interest of the child:

  • the historical relationship between the child and the grandparent seeking visitation;

  • the motivation of the grandparent seeking visitation;

  • the motivation of the person denying visitation; and

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

If the parents share equal parenting time with the child, the grandparents should have visitation when the child would normally be with the parent who is related to the grandparent seeking to establish visitation rights.

Alternatively, a grandparent may request legal decision-making by showing that he or she stands in loco parentis to the child, meaning that the grandparent has acted as a parent to the child and has formed a meaningful relationship with the child for a substantial period of time. There are several other requirements that must be met.

First, the grandparent will need to show that:

  • it would be significantly detrimental to the child to remain in the care of the legal parent who wishes to keep legal decision-making;

  • a court of competent jurisdiction has not entered an order concerning legal decision-making or parenting time within one year from the filing of the grandparent’s petition, unless the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health; and

  • any of the following applies: (a) one of the legal parents is deceased, (b) the child’s legal parents are not married, and (c) a proceeding for dissolution of marriage or legal separation of the legal parents is pending.

Second, the grandparent will need to rebut the presumption that it is in the child’s best interest to award legal decision-making to the legal parent because of the child’s physical, psychological and emotional needs by clear and convincing evidence.

5. Will the court allow me to move out of state with my child(ren)?

Unless you have a court order or written agreement that allows you to move out of the state with your child(ren), you must notify the other parent at least 60 days in advance if (a) you share joint legal decision-making or parenting time and (b) you plan to move out of state, or more than 100 miles within the state of Arizona. If the other parent objects within 30 days after notice was made, the court will schedule a hearing to determine whether relocation is in the child(ren)’s best interest.

The parent seeking relocation has the burden to prove that relocation is in the child(ren)’s best interest. The court will consider the “best interest” factors outlined above, in addition to the following factors:

  • whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child;

  • the prospective advantage of the move for improving the general quality of life for the custodial parent or for the child;

  • the likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders;

  • whether the relocation will allow a realistic opportunity for parenting time with each parent;

  • the extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;

  • the motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations; and

  • the potential effect of relocation on the child's stability.

If the requesting parent has sole legal decision-making, or is the primary residential parent, and needs to relocate in less than 60 days after giving notice to the other parent for reasons of health, safety or employment, the court will allow the requesting parent to temporarily relocate. If the parents share joint legal decision-making and substantially equal parenting time, the requesting parent must obtain a written agreement from the other parent in order to temporarily relocate for reasons of health, safety or employment.

6. How do I modify legal decision-making or parenting time?

Legal decision-making and parenting time can be modified by agreement. In fact, your Dissolution Decree or Parenting Plan may require that you and the other parent attempt to reach an agreement in mediation before filing a modification action in court. In addition, you cannot request a modification of legal decision-making or parenting time earlier than one year after the original order was entered, unless there is reason to believe that a child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

The court may modify legal decision-making if a modification is warranted by a substantial change in circumstances, such as when one parent relocates to another state, or there are concerns of parental fitness or substance abuse or allegations of domestic violence. Once the court determines there has been a substantial change in circumstances, the court will consider the “best interest” factors to determine whether modification is in a child’s best interest.

The court may modify parenting time rights whenever modification would serve the best interest of the child. However, the court cannot restrict parenting time rights unless it finds that the parenting time would seriously endanger the child’s physical, mental, moral or emotional health.