What is custody and how is decided?
The term “custody” includes two separate areas and the term itself is largely out of date. Instead, the Court today refers to legal custody as legal decision-making and physical custody as parenting time. The first refers to a parent’s authority to make legal decisions about their child. The second refers to time a parent can physically spend with the child. The Court determines legal decision-making and parenting time according to the best interests of the child standard.
What is this standard? The state legislature has made it clear in two ways. First, they have enacted Arizona Revised Statute (“A.R.S.”) § 25-403(A), which provides an outline. Second, judges have interpreted this statute in many different cases. This provides a framework for other judges in later cases. As a result, there are set guidelines to help judges make decisions about what serves the child’s best interests.
What things are in the best interests of the child?
Despite this clear-cut principle, you may ask, “How does a court determine the best interests of the child?” And that would be a valid question. After all, in a dispute over legal decision-making and parenting time, each party probably has opposing views on what is in the best interests of the child.
The State of Arizona generally considers joint legal decision-making and equal parenting time to be in the best interests of the child according to A.R.S. § 25-103(B). The State bases this on research findings that this type of joint arrangement benefits children and families most.
How does the Court apply these factors?
The Court will generally order joint legal decision-making and equal parenting time when possible. As a result, a judge must consider all relevant factors when determining the best interests of the child. To help judges make these decisions, the legislature has compiled a specific list of factors for them to consider. These factors help judges decide whether there is a reason to make an exception and order unequal parenting time or sole legal decision-making. The factors appear in A.R.S. § 25-403(A)(1)-(11), and judges must consider them, if applicable, in every case.
Generally, the factors included in the statute provide a framework for the judge to analyze three different areas:
- How are the relationships between the child, parents, friends, and family?
- What ability do the parties have to make good decisions and physically care for the child?
- How well can the parties co-parent?
Also, under A.R.S. § 25-403(B), a judge must include in the order specific written determinations regarding each factor that is the basis for the judge’s decision.
How does the Court issue these orders?
The Court may order legal decision-making and parenting time in a three different ways.
- Temporary Order: The Court may order legal decision-making and parenting time during the divorce proceeding by issuing a temporary order.
- Final Order: At the end of the divorce proceeding, the judge will enter a final order as to legal decision-making and parenting time.
- Modification: A final order stands until a party files a request for a modification with the Court. The Court may then change the original order for legal decision-making and parenting time.
Judges always apply the best interests of the child standard when determining legal decision-making and parenting time, regardless of which of these three options they encounter.
At Phelps & Moore, our team of attorneys can help you establish or modify legal decision-making and parenting time for your children. Call us today at 602-788-2089 to schedule a free 30-minute initial consultation.
The information and views contained in this posting are not legal advice, nor do they form an attorney-client relationship.