Phoenix Child Custody Lawyer
The Phoenix child custody attorneys at Bishop Law Office P.C. provide quality representation in custody (legal decision making) cases. Custody / legal decision making cases may be involved in divorce issues or in paternity cases when the parties were never married. These cases may also arise when the parties want to change or enforce a prior court order. We provide a great deal of information below that may help you in making decisions regarding your custody / legal decision making and parenting time issues.
Contact a Phoenix Child Custody Attorney Today
If you would like more information regarding how the new legal decision making and parenting time laws may affect you, please call our office and schedule a consultation with one of our attorneys at Bishop Law Offices, P.C.
Contact us to schedule an appointment with an experienced Phoenix child custody lawyer if you have questions about child custody, visitation or parenting rights.
Summary of Contents:
The following sections address many of the factors in custody / legal decision making and parenting time cases.
- Custody / Legal Decision Making
- Parenting Time
- Interstate Jurisdiction Issues
- Modifications of Legal Decision Making / Parenting Time
- Enforcement Issues
- Grandparent rights
- Mental Health, Substance Abuse, Domestic Violence
- Frequently Asked Questions and Additional Information
- What is parenting time?
- What are my custody and parenting options?
- What are the different types of legal decision making?
- Can a child decide where he / she wants to live?
- At what age can a child decide which parent to live with?
- What if a child is being alienated against me?
- What is a limited focus assessment?
- What is a parenting conference?
- What is a custody evaluation / comprehensive family evaluation?
- What are some other court appointments in parenting cases?
- Can I change or modify legal decision making or parenting time?
- Can I relocate out of state with my child?
- What are the parenting time guidelines?
- How does the Court determine legal decision making and parenting time?
- What is a Parenting Coordinator (PC)?
Custody / Legal Decision Making
Many people think the term “custody” means possession of the children. This is incorrect. As a result, the Arizona legislature removed the term “custody” from the Arizona Revised Statutes that regard these issues. The term “custody” has now been replaced with “legal decision making” regarding the children. This term “legal decision making” regards who makes the major decisions regarding the following issues:
(1) Education of the children – for example what school do the children attend, what elective courses do they take, whether the children are placed in remedial or advanced classes, and how are school disciplinary issues handled.
(2) Health care of the children – for example what physician do the children see, whether elective health care measures are taken, and whether the children see a counselor or seek mental health treatment.
(3) Major personal care decisions – For example whether the children (before 18 years old) can have a tatoo or piercings, whether they can have a girlfriend or boyfriend, and what point can they drive and similar personal decisions.
There are basically four types of legal decision making / legal custody orders that can be entered.
(1) One of the parties has sole legal decision making. This means that such person unilaterally makes all of the decisions that fall within the three catagories above.
(2) The parties “split” legal decision making so that one party has sole legal decision making over one or more of the above catagories and the other parent has sole legal decision making over one or more of the above catagories.
(3) The parties have “joint legal decision making”. This means that the parties have an equal say regarding the above catagories. Neither party has a superior voice in such issues.
(4) Joint legal decision making with a final decision maker. This means that the parties are to communicate and to attempt to make decisions together but that one of the parties has the ability to veto the other party and make the final decision if no agreement is reached. This can be split as well – i.e. one party can have final decision making authority regarding one or more of the above catagories while the other party can have final decision making regarding one or more of the catagories.
One of the most important considerations for the Court in determining legal decision making is whether the parents have the ability to communicate and make important decisions together. If one of the parents refuses to communicate with the other in a civil manner and absent abusive and derogatory statements, etc., or refuses to respond to important inquiries, the Court may award sole decision making to the other party.
The laws regarding legal decision making are set forth in Arizona Revised Statutes Section 25-401 forward. First and foremost, Courts are to look first and foremost to the children’s best interests in granting joint or sole legal decision making. The Court is supposed to assess all factors relevant to the child’s physical and emotional well being and sets forth some of the major factors that it looks to in Arizona Revised Statute Section 25-403. Some of the bigger issues is whether either party has committed domestic violence against the other parent or children and whether either or both parents have recent substance abuse issues (drugs, alcohol etc.). The factors also include the past, present and future (anticipated) relationship between the children and the parents and other persons that may significantly impact the children’s lives. The Court looks to the children’s adjustment in their respective homes, schools, and community in general. Another factor is the mental and physical health of all individuals involved, specifically as it applies to the children’s best interests. The Court looks to whether the parents can get along for the benefit of the children, are able to communicate with each other in a reasonable manner, and whether either of the parents is more likely to allow meaningful contact with the other parent. The Court also considers whether either party has misled the Court.
One of the major contentions that parents often make in legal decision making cases is that one of the parties was more involved with the children during prior years. Although the Court can take such into consideration, the judges often find that circumstances have changed or may change (because of divorce or otherwise) and allow the parent who has not been as involved to still have joint legal decision making authority.
The Arizona Revised Statutes regarding legal decision making provide a “presumption” that joint legal decision making is in the children’s best interests. This means that if legal decision making is litigated (fought over) and the case goes to an evidentiary hearing or trial that the party that does not want joint legal decision making must establish to the Court reasons why joint legal decision making is not in the children’s best interests.
As addressed above, the term “custody” does not mean possession of the children. Rather the term regarding parental “possession” of the children pursuant to the Arizona Revised Statutes is called “parenting time”. The statutes only use the term “visitation” when we are dealing with grandparent or other third party access to the children.
The parties can either agree upon a Parenting Plan that addresses when each of the parties is to have the children in their possession, i.e. their parenting time, or the Court will enter it’s own orders that it feels are in the children’s best interests.
Over time, the statutes have been clarified to make it clear that absent evidence to the contrary, neither parent is to have priority over the other based upon the gender of the parent, the gender of the child, the age of the child, etc. Thus the terms “Mother’s Rights” or “Father’s Rights” are little more than buzz-words rather than having any legal effect. Both parents are supposed to be treated the same under Arizona’s divorce and family laws.
The Arizona Revised Statutes provide a presumption that it is in the children’s best interests that each parent have continuous and maximum parenting time. Many judges (as well as recent case law) believe that there is a presumption that this means equal parenting time. The Arizona Revised Statutes however provide that this is subject to the children’s best interests – i.e. if the children’s best interests is not served by an equal parenting time order, the Court should enter an order that is in the children’s best interests. The factors that the Court looks at regarding parenting time are the generally the same factors that apply to legal decision making as addressed above, although some of the factors may be more relevant to one of the issues as opposed to the other.
Unequal parenting time is often ordered where one of the parties has substantial substance abuse issues (alcohol, illegal drugs etc.), where there is a history of domestic violence (against the children, the other parent or other people), and when the other parent is unable to exercise equal parenting time because of their work schedule or other reasons. Unequal parenting time may also apply when the children do not want to see one of the parents as much (so long as such desire is based upon mature decisions by the children), where one of the parties has a much stronger bond with the children, or one of the parties engages in unreasonable behaviors regarding the other parent or children. .
One of the major contentions that parents often make in parenting time cases is that one of the parties was more involved with the children during prior years. Although the Court can take such into consideration, the judges often find that circumstances have changed or may change (because of divorce or otherwise) and allow the parent who has not been as involved to still have equal parenting time.
Keep in mind that if the parties agree to a specific parenting schedule, the Court will generally adopt such agreement and thus a trial or evidentiary hearing may not be necessary.
The parties generally alternate major holidays with the children, although this depends somewhat upon whether the parties live in different states. If the parties live in different states, the party living apart from the children may be provided longer vacation periods during the school breaks and more holiday time.
Popular unequal parenting time schedules often provide that one parent has the children during alternate weekends and maybe one evening or overnight per week.
Popular equal parenting time schedules include week-on, week off or what is called the 5-2 2-5 parenting schedule. The 5-2 2-5 parenting schedule means that one parent has the children every Monday and Tuesday while the other parent has the children every Wednesday and Thursday. The parties then alternate the weekends (i.e. Friday after school until Monday school).
Interstate Jurisdiction Issues
Do you and the other parent live in different states? Click here to learn about out-of-state custody and child support support matters including enforcement and/or modification of prior orders.
- Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- Uniform Interstate Family Support Act (UIFSA)
Modifications of Legal Decision Making / Parenting Time
Our post-decree modifications lawyers in Phoenix can help you request a post-decree modification of your child support orders, legal decision making, and parenting time orders, as well as spousal support decrees. Click here to learn about modification of legal decision making / custody orders. Click here to learn about modification of child support orders.
Our custody enforcement lawyers in Phoenix can help you enforce your child support orders, legal decision making / custody orders and parenting time orders. Click here to learn about the enforcement of these types of orders.
Click here to learn about non-parent custody and visitation, “In Loco Parentis,” and how to file a request for custody and/or visitation with children when you are not the legal parent.
Mental Health, Domestic Violence, Substance Abuse in Parenting Cases.
As noted above, a parties mental health issues, domestic violence, and substance abuse problems may have a substantial impact upon a Court’s legal decision making and parenting time decisions.
However, just because a party has “skeletons in their closet” does not necessarily mean that they will not be treated fairly and that they will not receive parenting time or joint legal decision making. Even in serious cases where a parent is provided supervised parenting time, such parenting time usually and eventually becomes unsupervised if the party complies with the Court’s orders including treatment orders or recommendations.
One of the most important things that the Court looks at is whether somebody has done something about their issues. For example, just because a person has been diagnosed with a mental health condition, such as depression, bipolar disorder, anxiety issues, etc., does not mean that the Court will find that such diagnosis is contrary to the best interests of the children. Rather, the Court is to look at the impact of such conditions, whether a person is complying with their medicines and therapy, and any other recommended treatment. If a parent has had no episodes that impacted the children, or no recent episodes, the fact that they have mental health issues may not by itself be a significant concern.
In the same regard, if a party had prior incidents of domestic violence against a spouse or the children, the Court looks to the severity of such instances, as well as how recent they are. In addition, the Court will look to whether somebody has sought treatment regarding their anger and other issues.
Substance abuse issues are generally treated in the same manner. The fact that you had a misdemeanor conviction for smoking pot 10 years ago, or an old DUI / DWI, will likely have little or no impact on your case. Again, the Court looks to the severity of the substance abuse, how recent it has been an issue, and what the party has done to rectify such issue. Courts may order drug testing or alcohol testing if there is an objective belief that substance abuse is a recent and material issue.
Medical marijuana use in custody/parenting cases is often raised. Because of the recent legalization of such, a parent with a valid card is not prohibited from using legal medical marijuana. In the same regard, the use of legalized marijuana cannot by itself be a reason that a Court minimized parenting time or does not order joint legal decision making. However, the Court can look at whether there may be an impact on the children. Similar to alcohol (which is of course legal to consume), if the use of legal marijuana affects the best interests of the children, the Court can enter orders necessary to protect the children, including not using marijuana while the children are in the parent’s care, prohibiting smoking in the home and/or around the children, etc.
If you would like more information regarding how the new legal decision making and parenting time laws may affect you, please call our office and schedule a consultation with one of our Phoenix child custody attorneys at Bishop Law Offices, P.C.
Click – Child Support if you want to learn more about the Arizona Child Support Guidelines and how they may impact what you may expect to pay or receive.
Frequently Asked Questions and Additional Information Regarding Family Court and Parenting Issues
WHAT IS PARENTING TIME?
As addressed above, the Courts now use the term “parenting time” regarding a legal parent’s time with the children instead of the terms visitation or access. Sometimes the parents are ordered to share parenting time equally, and at other times, one of the parents is awarded the majority of the parenting time. In extreme cases, a parent may only be allowed supervised parenting time.
WHAT ARE MY CUSTODY & PARENTING OPTIONS?
Contrary to popular belief, there are many different options that you have regarding child custody (legal decision making) and visitation (parenting time). Such options focus upon what is in your children’s “best interests.” If the parents can agree upon what is in the best interests of their children between themselves, the Court will generally adopt such agreement. If you believe that you and the other parent can agree to the major terms, we suggest that you consult with a child custody attorney with Bishop Law Office with regard to the “Parenting Plan Agreement” to make sure that you have covered all the necessary terms.
WHAT ARE THE DIFFERENT TYPES OF LEGAL DECISION MAKING?
As addressed in more detail above, the term “custody” refers to “legal decision making” and not parenting time. The statute has been changed to eliminate the term custody and to use the term “legal decision making” instead.
- Sole Legal Decision Making – This is generally where one of the parents makes all of the important decisions regarding the children (i.e. decisions regarding education, medical, personal care).
- Joint Legal Decision Making – This is where the parties jointly make all important legal decisions together regarding education, health care and personal care. This can apply where the parties have equal parenting time. Or, this may apply where one of the parents may have more time with the children, but the other parent has legal rights with regard to decision-making. The parent with more time with the children is sometimes called the “primary residential parent”. The Parenting Plan may provide that one of the parties may make final decisions after consulting with the other parent. The Parenting Plan may provide instead that the parties make such decisions together. There are numerous options available.
Can A Child Decide Where He / She Wants To Live?
Included in the Arizona Revised Statute (ARS Section 25-403) is a factor that regards the wishes of the minor children “if they are of suitable age and maturity”. There is no specified age in Arizona when a child’s wishes should be given consideration. Some children may be more mature at younger ages than others. In the case of parenting time, and if a child desires to reside more with one parent, it is also relevant why the child has such desire. Sometimes the children have good reasons. On other occasions, their reasons may not be valid, such as when they have been improperly manipulated or alienated against the other parent, or when one of the parents provides more favors or fewer rules at their home. As there are many factors that affect a Court’s decision, the desires of the children is not the end of the analysis, and the Courts often make decisions different than what the children desire. It should be noted that minor children are not allowed to testify in Court, thus their desires are generally presented by different methods, including testimony from a mental health provider appointed by the Court or retained by one or both of the parties. Sometimes the Court will allow a parent to testify regarding their beliefs and experiences regarding the children’s desires, however, because of the rules of evidence, such is considered hearsay and may not be admitted depending upon whether a party has invoked the application of the Arizona Rules of Evidence. In contested legal decision making/parenting cases, it is always smart to at least consult with a qualified family law attorney in order to ensure that the proper procedures are followed so that your evidence is not precluded during the trial or other evidentiary hearings.
AT WHAT AGE CAN A CHILD DECIDE WHICH PARENT TO LIVE WITH?
In Arizona, a child’s wishes can always be considered if they are of suitable age and maturity. Judges generally do not interview children although they have the discretion to do so. Judges generally prefer that a mental health expert provide information regarding the children’s wishes and circumstances. Judges will sometimes allow the parents to tell the judge what the children want, however, the judge may not allow such testimony if the other parent objects.
These are only a few of the major questions that our clients often ask. Bishop Law Offices, P.C. is more than happy to answer any questions you may have during your consultation with us.
WHAT IF A CHILD IS BEING ALIENATED AGAINST ME?
The “term” alienation of children is generally applied when one of the parents is actively manipulating a child into disliking or not wanting to spend time with the other parent. Sometimes this a very obvious and sometimes such actions are more subtle. The concept of alienation of children is different than “estrangment”. The term estrangement is often used when a child does not want to spend time with one of the parents but there is no conclusion it is the fault of the other parent. Sometimes children do not want to spend time with a parent because of the parent’s actions which may include domestic violence against the child or the other parent, overly militant parenting styles or other reasons.
In cases involving the alienation of a child, the Court in severe cases may change legal decision making or parenting time.
Whether alienation or estrangement, the Court may order therapeutic intervention or reunification. This is where a mental health professional is appointed to help strengthen the bond between the parent and child. The Court may impose future threatened penalties against the alienating parent if they do not comply with Court orders or the mental health provider’s suggestions to the parent.
If you believe that the other parent is alienating your child against you, or if you want to improve your relationship with your child and see your child more often, you are invited to meet with one our Phoenix area custody attorneys at your earliest opportunity.
WHAT IS A LIMITED FOCUS ASSESSMENT?
Sometimes a party requests or the court orders the appointment of an expert to assist the court in determining the children’s best interest for purposes of parenting time, decision making and other court orders.
Private mental health specialists have created a less expensive and more expedient procedure for providing an assessment specifically applicable to the parenting issues involved in specific cases. Rather than conducting a full family evaluation, which often leads to an expensive an lengthy report by the expert, a Limited Focused Assessment, or Limited Family Assessment, may be a great alternative. The parties to a Focused Assessment agree in advance regarding the specific issues and categories that need to be addressed during the assessment. The mental health provider will thus limit the assessment to those matters that are directly relevant to the legal decision making and parenting time issues as addressed in advance by the parties. The cost for such assessment generally ranges from $1,500.00 to $4,000.00 depending upon the extent and complexity of the issues. Sometimes the costs are divided equally or in some proportion. Other times, one of the parties is ordered to pay the entire amount.
WHAT IS A PARENTING CONFERENCE?
The Court may order (but is not required to order) a Parenting Conference. The Superior Court provides certain programs to assist the Court in determining what is in the children’s best interests. The first step in a Parenting Conference is generally for a mental health provider to meet with the parents and attempt to negotiate agreements. If negotiations are unsuccessful, the mental health provider will interview the parents and may then interview the children. The mental health provider may then provide recommendations regarding legal decision making, parenting time and other matters to the Court. Unlike mediation, the matters addressed during Parenting Conferences are not confidential and may be addressed to the court. There is a small charge to the parties for this service. A parenting conference may not necessarily result in a custody or parenting time recommendation and sometimes may have limited use.
WHAT IS A CUSTODY EVALUATION/COMPREHENSIVE FAMILY EVALUATION?
The Court may order, but is not required to order, a comprehensive family evaluation (sometimes called a custody evaluation). This is where the Court assigns a private psychologist or mental health expert to provide recommendations to the Court regarding decision making, parenting time and other parenting issues.
These types of private custody evaluations are generally much more involved than Parenting Conferences and Limited Family Assessments. They often take longer than the other options. However, the mental health provider generally does much more as well. For example, the mental health provider (if a licensed psychologist) may provide for psychological testing of the parents. They may obtain documents from the parties and other sources (for example, prior counseling records, criminal records, party emails etc.). They may interview the parties more often, and may interview the children more often. They may contact people involved in the children’s lives, such as relatives, witnesses, teachers, and others that have knowledge of relevant matters. They may also determine whether one of the parties is attempting to alienate the children against the other party.
Sometimes a Parenting Conference or a Limited Family Assessment is sufficient. Sometimes a comprehensive evaluation may be more helpful. Such full evaluations cost generally between $4,000.00 and $10,000.00.
WHAT ARE SOME OF THE OTHER COURT APPOINTMENTS IN PARENTING CASES?
Alternate Dispute Resolution: The Court may assign your case to a judge pro-tem to conduct a settlement conference. This is similar to mediation, where the judge pro-tem assists the parties in reaching agreements regarding all aspects of their case.
Court Mediation: The Court has a mediation program for parenting issues only, most specifically parenting time and legal decision making. Again, the mediator is assigned to assist the parties in reaching agreements regarding such parenting issues. Mediation sessions are confidential and neither party will be allowed to introduce evidence of what took place during the mediation sessions.
Private Mediation: The parties at any time can agree to retain a private mediator, or a Court can order private mediation if it find the parties have the funds to do the same. Private mediation can address all issues in a case, including parenting issues as well as property and other financial issues. As noted above, mediation sessions are confidential and neither party will be allowed to introduce evidence of what took place during the mediation sessions.
Family Law Master: The Court can appoint a Family Law Master to investigate and provide recommendations to the Court regarding parenting issues as well as other issues. Such appointment must be agreed to by the parties.
Parenting Coordinator: If the parties both desire and agree, the Court may appoint a parenting coordinator to address parenting issues as they come up after Court orders regarding legal decision making and parenting time are ordered. This can involve issues such as school choice, counseling for the children, new spouse or boyfriend / girlfriend issues, and any other issues that may involve the best interests of the children. Previously, Courts could appoint Parenting Coordinators on their own or at either party’s request, however, the family law rules changed so that both parents must agree to such appointment. Such appointment usually only last one year. Such appointments can substantially help the parties resolve matters outside of Court. By agreeing to a parenting coordinator, you are also agreeing that any decision that they make (so long as within their authority) are binding.
CAN I CHANGE OR MODIFY LEGAL CUSTODY/DECISION MAKING OR PARENTING TIME?
A parent can request that legal decision making or parenting time be modified. Sometimes a parent wishes a complete change in legal decision making. Sometimes a parent just wants more parenting time with the children. You generally must wait one year after the last court order to change legal decision making unless the children are or may be endangered physically or mentally, or unless the other parent has violated the parenting orders. This one-year requirement may not apply to minor changes in “parenting time.”
Sometimes a change in parenting time or decision making is warranted because the children want to live primarily with the other parent. Sometimes such change is warranted because of the children’s ages and changed needs. Sometimes parenting time needs to be changed because one of the parents has moved away. If the parties agree to such changes, the Court will generally adopt any agreements. Again, the parents should consult with an attorney to make sure all necessary terms are covered.
CAN I RELOCATE OUT OF STATE WITH MY CHILD?
Whether a parent can relocate with the children out of state or even to the other side of town may depend upon whether such event is covered in the Court’s order and/or what is in the best interests of the children. You should always consult with a child relocation attorney in Phoenix before moving with the children. You should always consult with a child custody attorney if you think that the other parent is planning to move with the children and if such move may affect your rights or your parenting time. Click here to learn more about the laws regarding relocation of minor children outside of the state or beyond 100 miles from the other parent.
WHAT ARE THE PARENTING TIME GUIDELINES?
Maricopa County has in the past provided certain “guidelines” regarding parenting time. However, every case is different. These guidelines are not set in stone, nor do they state which parent (i.e. mother or father) is considered the primary parent. Rather, the Court looks at what is in the children’s best interests. Sometimes it is best that one of the parents is the primary residential parent. Sometimes it is best if the parties have equal time.
Arizona Statutes provide that the courts cannot base its parenting decisions upon a parent’s gender (i.e. there is no presumption in favor of mothers or fathers). As such, Courts over time are more and more likely to grant equal parenting time so long as both parents are fit and able to take on the responsibilities of equal parenting time and act reasonably with the children and other parent.
Click to view the Arizona’s Parenting Time Guidelines.
HOW DOES THE COURT DETERMINE LEGAL DECISION MAKING AND PARENTING TIME?
As addressed above, Arizona has statutes (rules) that set forth specific factors that the Court should address in deciding the best interests of the children. There are other factors, which may not be written in the statutes, but may be important. The statutory factors include but are not limited to the following.
- The past, present and future relationships between each of the parents and the children.
- What the children want and why (if of suitable age and maturity).
- How the children get along with each of the parents and others.
- How the children are doing in each household, and how they do in school and the community.
- Whether the parents use appropriate discipline and reinforcement.
- The mental health of each of the parents.
- The mental health of the children.
- The physical health of each of the parents.
- The physical health of the children.
- Whether the parents have any problems which affect the children’s best interests – For example – drug use, alcohol abuse, physical abuse of the children or the other parent, and criminal history in some cases.
- Which parent is more likely to work well with the other parent regarding parenting time and other issues.
- If psychologists or other mental health providers have been involved, the Court will consider recommendations from such experts.
- Whether one of the parties is attempting to alienate the children or is engaging in other inappropriate behavior.
- Whether there are events or factors which may endanger the children.
WHAT IS A PARENTING COORDINATOR (PC)?
A Parenting Coordinator (PC) is a mental health expert, attorney, or other expert appointed by the Court after final parenting orders are entered. Such appointment must be agreed to by the parties. A PC can meet with the parties and attempt to resolve parenting issues as they arise. Examples of such issues are numerous; i.e. where the children go to school, the effect of new significant others on the children, continued communication problems between the parents, vacation and travel disputes, enforcement of parenting time issues, inappropriate parenting complaints, and essentially any other issues that directly or indirectly involve the children.
Generally, a PC attempts to guide and assist the parents in reaching an agreement on how issues are to be addressed. The PC is much more than a mediator, however. The PC has the authority to make decisions and/or recommendations to the Court regarding the various parenting issues. A PC can be an invaluable resource to assist parties who are unable to communicate or resolve ongoing issues.
A PC generally does not have the authority to recommend significant changes in decision making or parenting time. If a party desires an expert’s input regarding significant legal decision making or parenting time changes, a comprehensive family evaluation, limited focus assessment or Parenting Conference is generally required.
Pursuant to recent changes to Rule 72 of the Arizona Rules of Family Court Procedure, a Parenting Coordinator can only be appointed by agreements of the parties.