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Custody
Custody is often a parent's principal concern in a divorce,
post-decree or paternity action. The right to physical custody
of your child and the authority to make decisions affecting
your child's well being are central to custody concerns. Custody
may be awarded to both or one parent. Many parents, new to
the family court system, believe that Arizona law prefers
one gender over the other in custody related cases, unfortunately,
this folklore results in innumerable qualified and caring
parents negotiating away critical custody rights.
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Sole Custody
Sole custody is an award of custody to one parent. A parent
with sole custody makes the decisions regarding the child
independently. The noncustodial parent is expected to conform
and be consistent with the major decisions made by the parent
with legal custody, in their day-to-day actions and choices
when the child is with him or her.
The
non-custodial parent is entitled to reasonable visitation
rights, unless the court finds, usually after a hearing,
that visitation would be harmful to the child. The non-custodial
parent may attempt to retain some control over the child's
upbringing by entering into a written agreement with the
custodial parent at the time of negotiations.
Arizona
law allows both parents to have access to records regarding
the child, including but not limited to medical and school
records, except when the court finds that giving one of
the parents such access would create a danger to the child.
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Joint Legal Custody
Joint legal custody is an award of custody to both parents.
Parents with joint legal custody share equally in the legal
rights, authority and responsibility for making decisions
regarding the child, except where the court has specified
that certain decisions are to be made by one of the parents.
The child may or may not, spend an equal amount of parenting
time with each parent.
Parents
who are award joint legal custody are often ordered or
agree to attempt to resolve future disputes through mediation
before either can bring the matter before the court for
a modification.
If
during a contested divorce, paternity or modification
case, the court finds that the parents are likely to
experience continued conflict and disputes related to
parenting decisions, a parent coordinator may be appointed.
A parent coordinator is a court appointed psychologist
who will meet with the parents on an ongoing basis to
attempt to resolve disputed issues and conflict. The
cost of the parent coordinator is shared in a ratio
agreed on by the parents or ordered by the court. The
cost is often subject to reallocation based on the recommendation
of the parent coordinator or evidence provide to the
court by the parties or their attorney.
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Primary Residential Parent
If there is an agreement or order for joint legal custody,
one of the parents may be awarded primary residential parent.
It is becoming increasingly common for neither parent to
be designated primary residential parent. The principle
benefit to the parent designated primary residential parent
is that the child will attend school within the boundary
of that parent's home, unless otherwise ordered by the court
or agreed upon by the parents. The primary residential parent
may make routine daily decisions and have the right to direct
the child's daily activities. However, with an agreement
or award of equal parenting time, except the school that
the child attends within the boundary of the primary residential
parent, most other decisions are made jointly.
If
a parent (even with sole custody) decides unilaterally
to enroll a child in private school without consent of
the other parent or the court, he or she cannot require
the other parent to contribute to the cost of the private
schooling, unless by agreement or otherwise ordered by
the court.
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Visitation (also known as Parenting Time)
The term visitation or parenting time refers to the time
the non-custodial parent is allowed to be with the child.
It also refers to the division of parenting time in joint
legal custody situations. In Arizona, the law allows a parent
who does not have custody to have frequent and continuing
contact with the child, unless limitations are necessary
to avoid a danger to the child. Our Arizona parenting time
attorneys understand the complex laws associated with parenting
time and have broad experience handling the complex family
situations often involved in establishing parenting time.
We also understand the elevated emotions associated with
parenting time issues and strive to provide our clients
with aggressive representation driven by experience and
focus on our client's desired outcome.
It
is important to understand that one parent's failure to
make support payments does not give the other parent the
right to deny visitation. Similarly, the non-custodial
parent has no right to withhold support payments as a
means of enforcing visitation rights. Violation of a visitation
order by keeping or taking a child from the parent who
has visitation rights may constitute visitation interference.
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Determination of Custody and Visitation
In contested custody and visitation (parenting time) cases,
there are frequently used procedures to resolve the issues
or provide the court with sufficient information and evidence
to make a determination:
Temporary
Hearings. If custody and parenting time are contested
early on in a case, one of the parents may request a temporary
orders hearing after the initial papers are filed.
The
court will issue a temporary order deciding custody, parenting
time and child support that will be in effect until the
court enters its final decree or orders.
Settlement
Conference. If custody, parenting time, and primary residential
parent are contested and are not resolved by the resolution
management conference or return hearing a settlement conference
may be ordered. A settlement conference is a form of alternative
dispute resolution in which the parties and their attorneys
work with a specially trained neutral third party to attempt
to resolve some or all of their disagreements. If the
settlement conference is offered through the court, the
service is free. If a private mediator is utilized, the
parties bear the cost as agreed or ordered by the court.
Parenting
Conference. In addition, if custody, parenting time, and
primary residential parent are contested and are not resolved
by the resolution management conference or return hearing
a parenting conference may be ordered. Different from
and in addition to a settlement conference, a parenting
conference provides an opportunity for the parents to
work with a specially trained counselor to attempt to
resolve some or all of their disagreements related to
custody, primary residential parent, parenting time and
parenting time schedule. Parenting conferences are a free
service offered by and through the court.
Custody
Evaluations. If the parties are unable to reach an agreement
regarding custody, parenting time, and primary residential
parent the parents may agree to or the court may order
a custody evaluation prior to trial. The custody evaluation
is made by a court appointed psychologist on whose recommendation
and report the court will rely in ordering a child custody,
parenting time and primary residential parent arrangement
that is in the best interests of the child. The fee for
a custody evaluator is frequently paid by the parties
in a ratio agreed upon or ordered by the court. Unfortunately,
use of a court evaluator may be prohibitively expensive
for the parties or a party and hence, is often not a viable
option.
Trial.
If the parties are unable to reach an agreement regarding
custody, parenting time, and primary residential parent
a trial will be set for the matter and evidence to be
heard. Factors influencing the determination of what child
arrangement is in the best interests of the child include,
but are not limited to the child's age, the child's attachment
to the parent who has been the primary caretaker, the
proximity of the parents to one another and the school
the child attends, the physical and mental health of each
parent, illegal or prescription drug abuse by either parent,
the existence of domestic violence, and the child's wishes.
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Modification of Custody and Visitation
Once the issues of custody and visitation have been resolved,
either by the court or the by agreement of the parents,
specific procedures must be followed to change the arrangement.
If the parents reached their agreement through mediation,
they may have to return to mediation to make any modifications.
If custody was established by a court order the parents
must typically petition the court to make any modifications.
In order to support a request for a change to a custody
or visitation arrangement, the parent seeking the modification
must show a substantial change in circumstances. The court
may only consider a request for a modification within a
certain amount of time after the original custody determination,
normally 24 months. However, the court will almost always
consider a request for modification if there is a showing
that the child is endangered by the current custody arrangement.
Changes
that may necessitate a modification of custody or parenting
time occur when a parent agrees to exchange primary residential
parent, a parent's work schedule is significantly altered
or a parent moves further away or to another State, making
the current orders unreasonably difficult, restrictive,
and obsolete.
Another
common change occurs when the original orders were issued
at a time the child was very young, typically an infant
and now that the child is older, the non-primary residential
parent would like the opportunity to spend more time with
the child to cultivate a stronger bond and parent-child
relationship. In most cases, there is absolutely no reason
that equally shared parenting time is not a reasonable
possibility.
It
should be noted that one parent's failure to make support
payments does not give the other parent the right to deny
visitation. Similarly, the non-custodial parent has no
right to withhold support payments as a means of enforcing
visitation rights. Violation of a visitation order by
keeping or taking a child from the parent who has visitation
rights may constitute visitation interference and warrant
a modification of custody and/or parenting time.
Caution:
consider carefully whether or not to concede primary residential
parent to the other parent without good cause, if you
do, it may become unbearable in the future. Remember,
in most cases, there is absolutely no reason that you
should not have equal parenting time with the other parent.
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on this information at your own risk.
Nothing contained herein constitutes legal advice.
If you have questions or concerns about legal issues, consult an
attorney.
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