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Child Custody

There are two kinds of custody: Legal and Physical.

Legal Custody

Legal custody refers to the right to make major decisions about your child's welfare, including education, healthcare, and religion. Some types of decisions included in the right of legal custody are where your child goes to school, whether your child gets surgery, and what kind of religious training your child receives.

There are two kinds of legal custody: Joint and Sole.

Joint Legal Custody

Joint legal custody means that both parents are responsible for the major decisions regarding their children. Each parent has the same rights and responsibilities; neither parent's right is superior to those of the other parent. Joint custody does not mean equal parenting time.  You and your spouse would be good candidates for joint legal custody if:

  1. Both of you are good parents;
  2. Each of you trusts the other to be a good parent;
  3. Each of you has the maturity to set aside the personal differences that gave rise to the divorce because your primary focus is on doing what's best for your children; and
  4. There is no history within your relationship of domestic violence or other control issues that would make joint decision-making difficult or impossible. The very worst place for children to be is at the center of ongoing conflict between their parents.

Sole Legal Custody

Sole Legal Custody exists when a court orders that one parent is responsible for making the major decisions about the care and welfare of the child. Although both parents may talk about these issues, only the parent granted sole legal custody has the authority to make a final decision if the parents cannot agree. A parent with sole legal custody is sometimes called the child's "custodial parent."

Physical Custody

Physical custody simply refers to where the child primarily lives.  Usually the parent without physical custody has visitation rights.  There are two kinds of physical custody: Sole and Shared.

Sole Physical Custody

The court orders that the child lives with one parent and not the other. Generally, the parent with sole physical custody is the person who has responsibility for the everyday care of the child.

Shared Physical Custody

Shared physical custody means that  where the child lives is essentially equally split between the parents.

How Does a Court Decide Child Custody?

The law states that a court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:

  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.
  10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

See ARS §25-403.

Custody and Visitation Evaluations

In cases where the parents cannot agree on custody or visitation, the Court may order a custody or visitation evaluation. This kind of evaluation generally involves the use of a court advisor to determine which custodial or visitation arrangement is in the best interest of the child. The court advisor then provides his recommendations to the Court.  A court advisor does not have to be a mental health care professional.  He or she may simply be a lawyer with lots of experience in family law.

Private custody evaluations are generally more involved than an evaluation by a court adviser. For example, private evaluations do involve a private psychologist or other qualified mental health expert who will conduct an in-depth investigation of both parents and the children. The expert may provide for psychological testing of the parents and obtain documents from the parties and other sources, such as prior counseling records and criminal records. The privately retained expert may interview the parties and children more often than a court advisor. (S)he may contact other people involved in the children's lives and determine whether one of the parents is attempting to alienate the children against the other.

A private custody or visitation assessment is paid for by one or both of the parents.  Such evaluations cost generally between $3,000.00 and $5,000.00.

Modification of a Custody Order

A parent can request a modification of a child custody order if certain conditions are met:

  1. One year has lapsed since the current child custody order.
  2. The children's present environment may seriously endanger the child's physical, mental, moral or emotional health. The requesting party has the burden of proving that a substantial and continuing change of circumstances affects the welfare of the child.
  3. Domestic violence, spousal abuse or child abuse has occurred since the last joint custody order.
  4. Six months has lapsed since entry of the original order and the other parent is not complying with the provisions of the order.

In all cases, a modification of custody must be in the child's best interest.

How Old Does A Child Have To Be Before (S)he Decides Who (S)he Lives With?

In Arizona, a child's wishes can always be considered regardless of age, but the judge will make the final decision on where the child will live. In determining issues of child custody, the trial court is compelled to base its determinations on the best interests of the child as to the custodian. One of the factors the court must consider is the wishes of the child. The wishes of the child of a sufficient age to form an intelligent custody preference are persuasive, although not controlling.

Domestic Violence and Child Custody

A judge has to consider the impact of domestic violence on your child when deciding issues of custody and visitation.

The Definition of Domestic Violence in Arizona

Arizona law defines domestic violence as the occurrence of a specific act or acts and one of the following relationships between the defendant and the victim apply:

  1. The victim and the defendant are spouses or former spouses or reside or have resided in the same household and are not married.
  2. The victim and the defendant have a child in common.
  3. The victim or the defendant is pregnant by the other party.
  4. The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister, or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
  5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.

The act committed must be one or more of the following:

  • physical assault
  • threatening words or conduct
  • intimidation
  • harassment by phone and/or in person
  • stalking
  • endangerment
  • unlawful imprisonment
  • kidnapping
  • criminal trespass
  • criminal damage
  • disobeying a court order
  • custodial interference
  • abuse to a vulnerable adult or child
  • certain crimes against children, and/or
  • disorderly conduct, such as: fighting, reckless display of a dangerous instrument, discharge of a deadly weapon and/or abusive language

ARS § 25-403.03

By law, joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence. The court shall consider evidence of domestic violence as being contrary to the best interests of the child.

To determine if a person has committed an act of domestic violence, the court shall consider all relevant factors including the following:

  1. Findings from another court of competent jurisdiction.
  2. Police reports.
  3. Medical reports.
  4. Child protective services records.
  5. Domestic violence shelter records.
  6. School records.
  7. Witness testimony.

If the court determines that a parent has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child's best interests. This presumption does not apply if both parents have committed an act of domestic violence.  Additionally, the offending parent has the burden of proving to the court's satisfaction that parenting time will not endanger the child or significantly impair the child's emotional development.

To determine if a parent has rebutted the presumption the court shall consider all of the following:

  1. Whether the parent has demonstrated that being awarded sole custody or joint physical or legal custody is in the child's best interests.
  2. Whether the parent has successfully completed a batterer's prevention program.
  3. Whether the parent has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.
  4. If the parent is on probation, parole or community supervision, whether the parent is restrained by a protective order that was granted after a hearing.
  5. Whether the parent has committed any further acts of domestic violence.

Can a Parent Who Committed Violence Get Visitation?

Sometimes. Although the court must consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance, it is possible that a parent who has committed violence will get custody or parenting time.

If the judge finds that a parent has committed an act of domestic violence, that parent has to prove to the court's satisfaction that visitation, or parenting time, will not endanger the child or significantly impair the child's emotional development. The judge may nevertheless place conditions on parenting time that best protect the child and the other parent from further harm.  If the court is unsure about whether visitation could be harmful to your child, it may establish specific visitation rules that it thinks are in the best interest of your child. The court may:

  • Order that an exchange of your child must occur in a protected setting as specified by the court.
  • Order that an agency specified by the court must supervise parenting time. If the court allows a family or household member to supervise parenting time, the court shall establish conditions that this person must follow during parenting time.
  • Order the parent who committed the act of domestic violence to attend and complete appropriate counseling programs.
  • Order the parent who committed the act of domestic violence to abstain from possessing or consuming alcohol or controlled substances during parenting time and for twenty-four hours prior to the beginning of his parenting time.
  • Order the parent who committed the act of domestic violence to pay a fee to the court to help with the costs of supervised parenting time.
  • Prohibit overnight parenting time with the parent who committed the act of domestic violence.
  • Order that the address of you and your child remain confidential
  • Order any other rules that the court feels is necessary to protect you, your child, and any other family or household member.

Remember, courts generally presume that it is in the child's best interest to see both parents regularly, so they favor providing both parents with some form of custody or visitation. Courts will only deny visitation when there is substantial evidence that it would be harmful to your child.

Statewide Domestic Violence Services

Arizona Coalition Against Domestic Violence
301 E. Bethany Home Road, Suite C194
Phoenix, AZ 85012
Phone: 602-279-2900
TTY: 602-279-7270
Hotline: 800-782-6400
www.azcadv.org

Domestic Violence/Homelessness Shelter Bed Hotline
800-799-7739
602-263-8900
www.azlawhelp.org

Community Information & Referral
1515 East Osborn
Phoenix, AZ 85014
Phone: 602-263-8856
800-352-3792 (outside Phoenix area)
Provides referral information to residents of ten Arizona counties, including Apache, Coconino, Gila, La Paz, Maricopa, Mohave, Navajo, Pinal, Yavapai, and Yuma.
www.cirs.org

Information and Referral Services
3130 North Dodge Blvd.
(just south of Fort Lowell Road)
Tucson, Arizona 85716
Phone: 520-323-1303
800-362-3474 (outside Tucson area)
Hotline: 520-323-9373
E-mail: inform@azinfo.org
www.azinfo.org

Valley Lifeline
602-263-8845

Voces Unidas
Provides detailed resource listings for Mexican national women residing in the United States who are the victims of domestic abuse
http://resources.centerforhumanrights.net/search_resources.php
Teen Link
800-235-9678
602-235-9678

Arizona Humane Society Project Safe House
602-997-7585
(Provides temporary foster care for pets of domestic violence victims)
www.azhumane.org

Drug Use by One or Both Parents

Pursuant to ARS § 25-403.04, if a court determines that a parent has been convicted of a drug offense within twelve months before the petition or the request for custody is filed, there is a rebuttable presumption that sole or joint custody by that parent is not in the child's best interests. To determine if the person has rebutted the presumption, at a minimum, the court shall consider the following evidence:

  1. The absence of any conviction of any other drug offense during the previous five years.
  2. Results of random drug testing for a six month period that indicate that the person is not using drugs as proscribed by title 13, chapter 34.

In the absence of a conviction, if it is proven by a preponderance of the evidence that one or both parents are abusing drugs, the court will place various restrictions and conditions upon the parents' visitation and custodial rights.

Parenting Time

Parenting time or visitation is a legal term referring to the opportunity for the child to spend time with the parent who does not have sole legal custody. This parent often is called the "noncustodial parent."

Supervised Visitation

Supervised visitation refers to contact between a non-custodial parent and one or more children in the presence of a third person responsible for observing and seeking to ensure the safety of those involved.

Supervised visitation is ordered in cases where the non-custodial parent abuses drugs or alcohol, is violent or abusive, or does not have the parenting skills to care for the child without another adult present. Supervised visitation is not intended to punish the parent, but to protect the child.

The Court does not generally allow a custodial parent to totally prevent the other parent from seeing the child on a regular basis. The only time this is appropriate is if the non-custodial parent has seriously harmed or abused the child, or is otherwise a serious danger to the child's emotional and/or physical health, or if there is a court order saying that the parent shall not see the child. An order of no contact by a parent is a last resort, and is used solely to protect the child.

Supervised Exchanges

Supervised Exchanges is supervision of the transfer of the child from one parent to the other. Supervision is limited to the exchange or transfer only.  The remainder of the parent/child contact is unsupervised. Most frequently, precautions are taken to assure that the two parents or other individuals exchanging the child do not come into contact with one another.

Therapeutic Visitation

Therapeutic visitation is appropriate If a parent needs coaching to learn to more appropriately interact with his or her child or no relationship currently exists between the parent and child.  The goal of therapeutic visitation is to support the building of a mutually satisfying relationship between a parent and child. The purpose of this kind of visitation is to teach appropriate parenting skills or to correct parenting deficiencies.

Parenting Plan

A parenting plan reflects decisions parents reach about where their child will live, how the child will be raised, and the routine decision-making about the child's upbringing.  It outlines the parenting schedule and each parent's responsibilities in raising their child. A parenting plan can be lengthy and detailed or it can be brief and simple. It should include a standard parenting schedule, which can delineate where the child will live during the week and weekends and who will be responsible for transporting the child to and from school and other activities on certain days. Additionally, the parenting plan should address holidays, summer vacations, and how other special days during the year will be divided between the parents.