In Arizona, the commonly used term “child custody” has been replaced with the concepts referred to as “Legal Decision-Making” and “Parenting Time.”
Legal decision-making refers to the parents’ authority to make major decisions for their children, including decisions related to the children’s health, education, and major personal care issues (driver’s licenses, tattoos, etc.). Legal decision-making can be awarded in various ways, and how it will be awarded depends on the agreement of the parties and what the court considers to be in the best interests of the children.
Joint Legal Decision-Making
The most common arrangement is where two fit parents share “joint” legal decision-making over all issues. They must reach decisions by consensus.
Sole Legal Decision-Making
Sole Legal Decision-Making is where decision-making is only awarded to one parent. That parent may unilaterally make all of the decisions that fall into the categories described above.
Split Decision-Making by Type of Decision Category
With split decision-making, one parent may have sole legal decision-making over one or multiple categories of decisions, and the other parent has sole legal decision-making over other categories.
Joint Legal Decision-Making with a final decision-maker means that the parents must communicate on the decisions and try in good faith to resolve the decisions by agreement, but that one parent has the power to override and make the final decision if an agreement cannot be reached. Final decision-making can be for all decisions or just for certain categories of decisions, such as education.
If the parents cannot agree and a judge must decide how to award parents legal decision-making authority, the judge will consider a variety of factors relevant to the child’s best interests, including the factors listed in the family law statute at Ariz. Rev. Stat. section 25-403. A court would consider how each parent communicates with the other parent, whether there are any issues of substance abuse, domestic violence, or mental illness that affect the children, and many other factors related to the children’s well-being. When there are disputes about legal decision-making, it can sometimes be helpful to get an outside expert to do a full-scale custody evaluation and make a recommendation to the judge about how legal decision-making should be awarded. Under Arizona law, there is a presumption that joint legal decision-making is in the child’s best interests and if a parent does not want joint legal decision-making, that parent must provide why it is not in the child’s best interests.
Parenting Time refers to the amount of time or schedule that each parent has the children in their care or “possession.” This is sometimes also referred to as physical custody. Parties can either agree to a specific “parenting plan” or the Court will choose one for the parties if they are unable to agree.
Just like legal decision-making, the parenting time awards should be based upon the best interests of the children. Neither parent receives any special legal preference over the other based upon the gender of the parent, the gender of the child, or the age of the child; both parents should be treated equally under the law in this respect. Arizona law provides a presumption that it is in the children’s best interests to have frequent, meaningful, and continuing contact with each parent. Unequal parenting time may be ordered when it is logistically appropriate or when there are parental fitness issues. In the case of parental unfitness, a judge may choose to require supervised parenting rather than completely deny the parent any parenting time.
Parenting time is distinguished from “visitation” or “access,” which are terms typically reserved for non-parents visits such as grandparents or other third parties.