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Family Law Research Guide: Child Custody

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Child Custody

In all divorce proceedings with children, the parties should attempt to reach an agreement regarding custody and visitation. When a court reviews a case dealing with child custody, the first issue it will consider is whether or not it has proper jurisdiction -- the right and the power to interpret and apply the law to the child. Once this is determined the court will consider any agreement between the parties. Child custody and visitation agreements should take into consideration:

  1. Who will take care of the child;
  2. How necessary decisions will be made;
  3. How children will spend time with each of the parties; and
  4. How the child's medical, emotional, education, physical and social needs will be met

The court than reviews this agreement and determines if they meet the best interest of the child. When agreements can not be reached a hearing is required to resolve these issues.

When does Arizona have jurisdiction of child custody matters?

Arizona has enacted the Uniform Child Custody Jurisdiction and Enforcement Act which specifies that Arizona courts have jurisdiction over child custody if:  (1) Arizona is the home state of the child on the date of the beginning of the proceeding, or was the home state of the child within six months prior to the beginning of the proceeding and the child has been removed from this state, and the petitioning parent or person acting as a parent continues to live in the state; or (2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the grounds that Arizona is the more appropriate forum as the child and his parents have a significant connection with Arizona and substantial evidence is available in Arizona concerning the child's care, protection, training and personal relationships; or (3) all other courts having jurisdiction have declined to exercise jurisdiction, or (4) no other state has jurisdiction. A.R.S. § 25-1031(A).

What if my child is of Native American heritage?

Custody matters involving an Native American child are governed by the Indian Child Welfare Act. 25 U.S.C. § 1901 et seq. The tribal court has jurisdiction providing the Native American parent does not object and the tribal court is willing to accept the case.

How does the court determine who is awarded custody of children?

The court shall determine custody in accordance with the best interest of the child. The court determines custody based upon a series of factors set forth in A.R.S. § 25-403(A). These factors include:

  1. The wishes of the child's parent or parents as to custody.
  2. The wishes of the child as to the custodian.
  3. 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.
  4. The child's adjustment to home, school and community.
  5. The mental and physical health of all individuals involved.
  6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
  7. Whether one parent, both parents or neither parent has provided primary care of the child.
  8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
  9. Whether a parent has complied with chapter 3, article 5 of this title. [The Parent Information Program]
  10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under A.R.S. § 13-2907.02.

The court is not to prefer either parent because of the parent's sex. There is no presumption favoring either sole custody or joint custody. Before awarding custody the court may interview the child in chambers, and the court may seek professional advice. Such advice shall be made available to counsel by the court when requested. The court may also order an investigation. The mental health of every individual involved is relevant in a custody proceeding. A.R.S. § 25-403.

What is physical custody?

Physical custody refers to who the child lives with subject to the other parent's reasonable visitation. Physical custody can be sole or joint.

What is legal custody?

Legal custody refers to who will have decision making authority concerning the minor child. Legal custody can be sole or joint.

What is sole custody?

Sole legal custody designates one parent with the decision-making authority over major issues involving the child. Except when agreed to by the parties or except when the court orders otherwise, the parent having custody shall determine the child's upbringing.

What is joint custody?

Joint custody refers to joint legal custody or joint physical custody or both. Joint legal custody means that both parents share in the decision-making authority over major issues regarding the child(ren). Joint physical custody means the condition under which the physical residence of the child is shared by the parents in a manner that assures the child has substantially equal time and contact with both parents. Joint custody does not mean a fifty-fifty time share regarding custody of children. Hindsley v. Hindsley, 145 Ariz. 428, 701 P.2d 1236 (Ariz. App. 1985).

What is shared custody?

Custody can be shared by parents. With shared custody, both parents share in the decision-making authority regarding the child(ren) and neither parent is designated the primary physical custodian. Instead, each parent spends equal time with the child(ren). There are many approaches to shared custody. For example, parents can alternate weeks or alternate every six months.

How does the court decide how much visitation the non-custodial parent will receive?

The non-custodial parent should be granted reasonable visitation unless the court finds, after a hearing, that visitation would seriously endanger the child's physical, mental, moral or emotional health. Only rarely will a parent be deprived of visitation privileges. The court can also grant visitation to a stepparent. A.R.S. § 25-408.

A specific court-ordered visitation schedule is necessary to prevent disputes between parents. Such a schedule should address the regular schedule, holiday schedule, and summer/vacation time for each parent. It should also specify which provisions take precedence in the event there is a conflict between the specific time allotted for one parent for regular access versus the specific holiday or vacation entitlement.

The court shall assess attorney's fees and court costs against any parent who unreasonably denies or interferes with court-ordered visitation. The court may order a social service agency to supervise visitation. A.R.S. §25-410.

What can I do if I need child custody or visitation set as soon as possible?

If an agreement cannot be reached between the parties concerning child custody and visitation, it may be necessary to obtain temporary orders from the court. See the Temporary and Emergency Orders page on this website for more information.

If I do not have joint or shared custody of my child(ren), can I still have access to their medical and educational records and information?

Except in circumstances where access to the information would seriously endanger the child's or custodial parent's physical, mental, moral or emotional health, each parent (regardless of the legal custody designation) is entitled to unrestricted access to the information directly from the custodian of the records or information. A.R.S. § 25-403.06 and A.R.S. § 25-408(K).

What is the parental education program?

The parental education program is a mandatory educational program for the purpose of educating parties about the impacts that divorce, the restructuring of families and judicial involvement have on children. A.R.S. § 25-351. Parties are required to attend the program when they are involved in a dissolution of marriage, legal separation, annulment or paternity proceeding. A.R.S. § 25-352. There is a fee for enrollment in the program; however, the fee is not to exceed fifty dollars. A.R.S. § 25-355.

 

Last revised:  20 October 2008

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