Child Custody

The term “custody” has different meanings in a divorce proceeding. Custody can be legal custody or physical custody. Legal custody, now known as legal decision-making in Arizona, involves making decisions on issues such as health care, education, religious training and personal care. Legal decision-making can be joint, joint with final say or sole and separate to one of the parents. Joint legal decision-making means that the two parents make these decisions together after consulting with each other. If the parents cannot agree on a decision, they generally need to go back to mediation. If agreement still cannot be reached, then the matter may have to be heard by the court at a trial or at a Post Dissolution Order to Appear Hearing. If the parents cannot communicate with each other and reach joint decisions together, then one or the other of the parents will likely be granted sole legal decision-making which means that this parent will make all of the decisions on health care, education, religious training and personal care without consulting with the other parent or obtaining their approval. A hybrid of this legal custodial scheme is joint legal decision-making with final say. This is not found in the statutes but has been consistently ordered by the Arizona Courts where appropriate. If joint legal decision-making with final say is ordered, the parents must still consult with each other on all legal decision-making, but, if they are unable to agree, one of the parents is appointed by the court to make the final decision without the agreement of the other parent.*

Parenting Time. Custody can also mean physical custody, as opposed to legal custody. Physical custody, now known as parenting time in Arizona, is the decision as to which parent has physical care, custody and control over the child or children. One of the parents may be designated as having primary parenting time meaning that this parent has more than 50% of the time with the children. The parents may also agree on joint or substantially equal parenting time which is an approximately equal schedule. Joint parenting time does not have to be exactly equal in terms of a time split, but it does have to be logistically feasible. Allocation of parenting time, also formerly known as visitation, is one of the most litigated aspects of divorces. In order to avoid excessive litigation, Arizona mandates that most of those disputes involving either legal decision-making or parenting time go to mediation conducted by the Conciliation Court, a branch of the Superior Court, before going to trial. In mediation, the parties sit down with a specially trained mediator and attempt to amicably resolve issues concerning legal decision-making and parenting time. Oftentimes there is a residential parenting schedule put in place, together with holiday and vacation schedules. The Arizona mediators appointed by the Conciliation Court do not resolve financial issues such as child support. The mediators only resolve legal decision-making and parenting time. Although joint legal decision-making and substantially equal parenting time is the preferred resolution, there are many cases where joint legal decision-making and parenting time are inappropriate for a variety of reasons. If so, one of the parties is designated as the primary parent and receives the majority of parenting time and the other parent receives, in most instances, at least reasonable parenting time, the exact amount of which varies depending on the facts of each case. The Arizona Supreme Court website, www.azcourts.gov/AZSupremeCourt.aspx, Family Law Section, contains several age appropriate Model Parenting Plans to help parents decide which residential schedule may be right for them and their children.

*The information in this message is general and should not substitute for the advice and counsel of a licensed attorney.