Arizona statutes divorce law decisions


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  • How Do Courts Determine Legal Decision Making and Parenting Time?;

The law does not favor one form of custody over another, nor do they base their decisions on the sex of the parent. Parenting time also sometimes called "access," "contact," "residential 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 is often called the "non-custodial parent. Custody and parenting time problems arise most often when parents ask the court for a dissolution of the marriage divorce or a legal separation. Custody and parenting time problems do not go away after the divorce is final. In these situations, parents sometimes disagree about who makes decisions affecting the child's health, welfare and education, where the child lives and how much parenting time a non-custodial parent has. Parents may agree between themselves about custody or parenting time; however, if the parents cannot agree and if the Arizona legal system becomes involved for example, when a parent asks the court for a divorce , only the Superior Court may decide these issues.

This means that one person has sole legal custody of a child. Although both parents may discuss these matters, the parent designated by the court has authority to make final decisions in the event the parents do not agree. This means joint legal custody or joint physical custody or both.

Family and Children > Child Custody > Things You Should Know about Custody and Parenting Time

In most cases, in order to obtain an order for joint custody, both parents must agree to and submit a written parenting plan to the court. In addition to sole custody, the law allows the court to grant joint legal custody and joint physical custody or both. When legal custody is awarded to one parent, it is called "sole legal custody.


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In the best interest of the child, the court may direct that certain decisions be made by only one parent, even when joint legal custody is granted. The court may order joint legal custody without ordering joint physical custody. If parents have joint legal custody, does the child live with each of them for equal amounts of time?

Not necessarily. Having joint legal custody does not mean that parents also have joint physical custody or equal parenting time see section , Arizona Revised Statutes. When the court grants joint physical custody, the place where the child lives the child's physical residence is shared between the parents in a way that the child will have essentially equal time and contact with both parents. Joint physical custody may be granted in situations where parents share joint legal custody or when one parent is granted sole custody.

Arizona law does not favor one form of custody over another. Also, the court may not prefer a parent as a custodian because of that parent's sex. The court may grant a custody order only in certain kinds of cases. Most often, custody is determined when the parents are seeking a legal separation or divorce, or when parents are asking the court to change a custody decision that was made in an earlier separation or divorce case. Custody also may be ordered when one parent starts a court case to decide paternity or maternity of a child.

When a parent starts a court case for legal separation or divorce and the parents cannot agree about child custody, custody automatically becomes an issue for the court to decide. These court decisions are made in temporary orders hearings and in final trial if the parties are unable to reach agreement.

After a decree of legal separation or divorce has been granted, the court still has authority to change modify an earlier custody order. Either parent may request in writing that the court modify a custody order. To change an existing order it must be shown that the best interests of the child are served. The request is filed with the Clerk of the Superior Court and a fee for filing is charged; however, there are limitations on requesting a modification.

For example, a request may not be filed for one year from the date of the earlier order, unless there are special circumstances seriously endangering the child's physical, mental, emotional or moral health.


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  • What Disqualifies a Spouse From Receiving Alimony in Arizona?!

If a form of joint custody has been ordered, a modification may be requested at any time if there is evidence that domestic violence, spousal abuse or child abuse has occurred since the date the last order was granted. In a joint custody situation, a parent must wait six months before seeking a modification if the reason for the request is that one parent has failed to obey the court's custody order.

If there is a dispute about custody, the court sometimes refers the parents to internal court mediation services. This process gives the parents an opportunity to reach an agreement regarding custody and related issues; however, if the parents are unable to agree on custody, the court will decide for them. Sometimes the court seeks professional advice from outside experts who evaluate the family situation or offer an opinion about custody. In some situations, the court also may order an investigation by a social service or other agency.

In every case, the court must decide custody based on a determination of the best interests of the child. Usually it is best if parents can agree on decisions about raising children after a legal separation or divorce. The court usually accepts the parents' mutual decision, but the court's decision about custody must be made in the best interests of the child.

After review of the agreement's terms, the duty imposed on the court by law may require that the court not accept the parents' agreement. What does the court consider when deciding what is in the child's best interests in custody disputes? State law provides guidance to the courts by listing factors that the court should consider. These include such things as the wishes of the parents, the child's wishes, how the child interacts with each parent and any other children in the family, the health of each person involved, the child's adjustment to home, school and community, which parent primarily has provided care for the child in the past and which parent is more likely to allow the child to have frequent and meaningful contact with the other parent.

The court also must consider whether there has been domestic violence in the family, drug or alcohol use by a parent or other circumstances that may endanger the child's physical, mental, emotional or moral health. The court will presume that an award of custody to a parent who committed an act of domestic violence is contrary to the child's best interests. If the parents request joint legal custody, they also must submit to the court a written plan parenting plan indicating how they will cooperate to raise and care for the child. The court also may order joint legal custody even if one parent objects.

The court's decision will be made in the best interests of the child. The law provides that when the court grants a custody order, it also must decide what amount of child support should be paid, by each parent, under the Arizona Child Support Guidelines. Joint custody does NOT mean that either parent is no longer responsible to provide for the support of the child.

The law provides that a person who stands in loco parentis to a child may ask the court for custody or parenting time. To be in loco parentis a person must have been treated as a parent by the child and have formed a meaningful parental relationship with the child for a substantial period of time. There are other requirements that must be met before a request may be made to the court. One of the child's parents must be deceased, the child's legal parents must be unmarried, or a court case for divorce or legal separation between the legal parents must be pending see section , Arizona Revised Statutes.

How can a parent obtain school, medical and other records of their child after divorce? No matter which form of custody is ordered, both parents are entitled to the same access to all records pertaining to their child unless the release of such information would place the child or one of the parents in danger see section , Arizona Revised Statutes. If both parents live in Arizona, the parent with physical custody desiring to move with the child must give 60 days' notice to the other parent before the child may be moved more than miles from the other parent or from the state.

The day period gives sufficient time to the non-moving parent to request a hearing to stop the move. A parent who is required to relocate in less than 60 days must be a parent with joint physical custody and have the agreement of both parents or a court order allowing the move of the child. If agreement cannot be reached in the situation of required relocation in less than 60 days, the moving parent must file a request with the court.

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A child deserves to have a good relationship with both parents. When parents do not live together, the child should have the opportunity to spend time with each parent. State law entitles a parent to reasonable rights of parenting time to ensure that a child has frequent and continuing contact with the parent.

However, parenting time can be limited, or even denied, if the child's physical, mental, moral or emotional health would be seriously endangered by parenting time with a parent. That depends on the child's age and stage of development. For example, it may not be appropriate to have lengthy periods of parenting time with a newborn child, although more frequent shorter visits may be appropriate.

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Some counties Coconino, Maricopa, Mohave, Pima, Pinal and Yavapai have established guidelines to help parents and the courts decide how much parenting time is important to the child. The Arizona Supreme Court has also published Model Parenting Time Plans to assist parents in establishing age-related parenting time schedules; however, it is important to remember that guidelines do not apply to all family situations or to all children. If the parents cannot agree on a schedule, the court decides parenting time on a case by case basis see listing at the back of this booklet for information on obtaining a copy of the Model Parenting Time Plans.

The term "reasonable parenting time" means time spent with a child that is average for most cases. Although the term has sometimes been used in parenting plans and even in court orders, parenting time decisions depend on the circumstances of each family, considering the child's age and development. When parenting time is described only as "reasonable," it is difficult to predict when or for how long parenting time periods should occur.

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When preparing an agreement or parenting plan, it is recommended that parents specifically decide when and for how long parenting time periods will be, including how to handle and allocate special occasions like vacations, school breaks, birthdays and holidays so that both parents are considered.

Guidelines available in some counties and the Model Parenting Time Plans may be useful to parents in making these decisions. The parenting time order should be written specifically enough to enable the court to enforce the order if the order is not followed and one parent files a request for enforcement.

Arizona law provides that in most cases a parent not granted custody of the child is entitled to reasonable parenting time rights to ensure that the child has frequent and continuing contact with that parent.

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As a part of its custody order, the court also will decide what amount of parenting time is appropriate. Even if parents share joint legal custody, the child may live primarily with one parent or share residential time with both parents, making it important to decide what parenting time schedule should be ordered.

Parents are free to agree on the best parenting time plan for their child. If parents cannot agree, or if their agreement is not working, court action may be necessary.

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Remember, only the Superior Court can decide parenting time matters and issue an order that can be enforced if disagreements arise or if one parent does not honor the parenting time schedule. As with custody, the court may grant a parenting time order only in certain kinds of cases.

Most frequently, parenting time is determined when the parents are seeking a legal separation or divorce, or when parents are asking the court to change a parenting time decision that was made in an earlier separation or divorce case. Parenting time may also be ordered when one parent starts a court case to decide paternity or maternity of a child or after a voluntary acknowledgment of paternity.

When a parent starts a court case for legal separation or divorce, child custody and parenting time automatically become issues for the court to decide if the parents cannot agree. After a decree of legal separation or divorce has been granted, the court still has authority to change modify an earlier parenting time order. Either parent may request in writing that the court decide what parenting time should be.

The request is filed with the Clerk of the Superior Court and a filing fee is charged. If there is a dispute about parenting time, the court sometimes refers the parents to court mediation services.

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