Frequently Asked Questions

Do the courts favor mothers?

There is no such preference. There are many factors that the court considers, but courts do not favor mothers over fathers.

How does the court decide decision-making? (A.R.S. §25-403)

The court looks at the following factors:

1. The past, present and potential future relationship between the parent and the child.
2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
3. The child’s adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
10. Whether a parent has complied with chapter 3, article 5 of this title.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

The court also evaluates decision-making with A.R.S. §25-403.01.

1. In awarding legal decision-making, the court may order sole legal decision-making or joint legal decision-making.
2. In determining the level of decision-making that is in the child’s best interests, the court shall consider the factors prescribed in section 25-403, subsection A and all of the following:
3. The agreement or lack of an agreement by the parents regarding joint legal decision-making.
4. Whether a parent’s lack of an agreement is unreasonable or is influenced by an issue not related to the child’s best interests.
5. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint legal decision-making.
6. Whether the joint legal decision-making arrangement is logistically possible.
7. An order for sole legal decision-making does not allow the parent designated as sole legal decision-maker to alter unilaterally a court-ordered parenting time plan.
8. A parent who is not granted sole or joint legal decision-making is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child’s physical, mental, moral or emotional health.

We are not yet divorced and my wife took the kids to New York.

Once the divorce is filed and served, neither parent can take the children out of state without permission of the other parent or the court.

Can I stop my spouse from dating when she has the kids?

No, as long as they are safe, there is not much you can do. You have the right to know who the children are spending time with and whether they are spending the night somewhere other than their home with the other parent. Be reasonable in these requests, but keep your children safe. You might want to know the person’s birth date and Social Security number so you can run a background check on him/her. You have a right to know your children are safe.

How much do I have to pay for the kids?

It all depends; this is discussed in Chapter 5 regarding child support.

Can the other parent schedule soccer for the kids when they are supposed to spend time with me?

It is best if this can be negotiated. It is unknown what each judge would decide. Some believe that a parent can only schedule on their own time. This basically eliminates your children from most activities. This is probably one of the most hotly litigated issues after divorce. Think of it this way: it is not “your time;” it is your child’s childhood.

My wife has the kids every other weekend, but she works and leaves them with her mother. What can I do?

You could have an agreement called a “right of first refusal.” This is a common provision, which reads that if one parent who has the kids is gone for more than four hours, s/he will call the other parent and offer them the “right” to parent the kids before anyone else. If the other parent is busy, then parent number 1 can leave the kids with a responsible person of their choice. But it often might be a good idea to allow the grandmother and the kids to bond. Did you encourage this relationship when you were still married?  If so, why not continue it?

My wife has the kids every Monday and Tuesday, but she is starting school and leaves the kids with her boyfriend. Can I have parenting time with my children, instead of her boyfriend?

The right of first refusal would apply. Also, you have every right to know exactly who is taking care of your children when your spouse is not home; this includes name, address, phone number and ID information, so you can do a background check if you desire. This is not to say that you use such requests as harassment; in fact you have a similar obligation to your spouse to let her know with whom you are leaving the kids, if anyone. You both have the continuing job to make sure your children are safe.

My husband smokes pot almost daily. Should he have parenting time with the children?

Not unless it is supervised. Drug use will preclude him from having unsupervised parenting time. You should ask the court to have him drug tested at TASC (Treatment Assessment Screening Center). Their website is: www.tascaz.org. You might want to consult with an attorney, as this issue can become complicated.

My spouse has physically abused me. Can he still have decision-making of the kids?

Significant domestic violence is contrary to joint legal decision-making. This is also beyond the scope of this book. Please consult with an experienced family law attorney. (See Chapter 13.)

My 14-year-old does not like her father. Should I make her go visit him?

Do you know why she does not like to visit him? If the child is safe and his house is safe, you should do everything you can to encourage the relationship. The child may be taking on your negativity or Father may just not be a very attentive parent. Help Father be a better parent by role modeling for him and discussing this with him. Maybe they could go to counseling together. Teenagers often do not want to be with either parent. It is important, however, to provide ample time with each parent.

My ex-mother-in-law is coming for vacation. She wants to see our kids for a concert on my Saturday. I am afraid if I give in, I will always be giving in. Should I let my kids see her?

Yes, you should very seriously consider it. Do your kids want to go? Remember, while this is “your” time, it is also their childhood. Try to negotiate and get make- up time or be gracious and let it go, knowing that your former spouse will return the favor when your parents come to town. Keep your kids first. Ask yourself, would I have allowed this if I were still married?

My former spouse wants to go on a cruise to Mexico. I will not let the kids get passports. Can he get my children passports without my approval?

This can get sticky, because there are hundreds of international abductions every year. If you truly believe it is for a cruise, you might consider it. You can ask for the written itinerary and documentation showing that they are really going on the cruise. Sometimes the abduction of children comes as no surprise to the abandoned parent. You could agree to have the passports kept in a safety deposit box that requires two signatures to retrieve. If your former spouse has citizenship in another country, you might want to do research to find out about whether that country is a member of the Hague Convention and whether you could retrieve the children if they were kidnapped. You should seek legal advice if kidnapping is a real concern.

We decided our kids would be Catholic. My spouse will not take them to mass on her Sundays. Can I ask the court to make my spouse take our children to mass?

The court will generally not mandate where each parent takes the children to worship on their respective weekends. If you have a written agreement in your decree as part of your joint parenting agreement, the court may enforce it.

My son wants to go to his band banquet on Friday night, but it is my parenting time and I do not want him to go. Should I let my son go?

Is this a question you are seriously asking? If you contemplated not allowing your son to attend his band banquet, then take a step back and think about your son’s best interest, not yours. If you do not allow your child to go, you are forcing your son to spend time with you because it is “your” time. You should carefully consider whose needs you are thinking about. We have heard on more than one occasion that it is “not in the child’s best interest” to be involved in school activities during one parent’s time, but that is simply not the case. It is important that, as a parent, you stay involved in your children’s lives.

How does decision-making affect child support?

The parenting time arrangement is one factor considered in the worksheet (see Chapter 5.) The more time you have your child, the more expensive it is.

We have not been to court yet and there are no orders. Who gets the kids right now?

It is basically a free-for-all, unless the two of you can decide. Just remember that what you do now can be reported to the court later. If you unreasonably keep the children away from one parent out of vindictiveness, that will be detrimental to your obtaining legal decision-making.

Can I get temporary decision-making?

Yes. You must file a motion asking for it, after the petition for divorce is filed or with the petition as it is being filed. The court will set a hearing date, take evidence and make a decision if you all cannot decide. You really should be able to decide on a temporary agreement. Sometimes parents try different schedules until they find one that works. Not all the children in a family have to have the same schedule.

We have a parenting schedule that we both agree with. Can we put it in writing?

Yes. You can write and sign an agreement, as can be found in the Arizona Rules of Family Law Procedure Rule 69, which will be valid in court. You can attach it to your joint parenting agreement or rewrite into your final joint parenting agreement. It is valid, even if it is not filed with the court. It is a good idea to put it in writing during the pendency of the divorce, just so you have some certainty.

My husband never really helped parent the kids, but now he wants 50/50 time with them. Is he likely to get 50/50 parenting time?

History of care giving is only one factor in determining the best interests of the children. Perhaps he never had the chance to co-parent in the past. But if he is doing a good job, the kids are happy and he is learning to be a good, involved father, congratulations to your family! Fathers often shift their work focus after a divorce so they can stay involved in their children’s lives, and that is a good thing.

My husband is doing whatever I do. If I take the children for ice cream on my weekend, he does it on his next visit. When I started reading books to them at night, he started doing it on his parenting time. I bet he is just doing it to look good. What gives?

Perhaps you are modeling parenting behavior for him. He is actually learning how to be a good parent by watching you. Good for your family! Keep up the good work! Be proud of him and happy for your kids.

Will the court tell me when I can see my kids?

Only if you and your spouse cannot agree. You really do not want to turn this life- changing decision over to a stranger who will only get to know your family in an hour or so of an evidentiary hearing. Not only do you relinquish all control, but having to testify and perhaps say negative things or answer embarrassing questions can leave the family scarred and impact future interactions. There is no

need to litigate these issues unless there is a domestic violence, drug or other abuse issue, and you must have the help of the court to protect your children.

Will my kids have to go to court?

No, judges do not care to speak with children. Your children can talk to counselors and they can write reports. Also, the conciliation services may choose to interview your children as part of a parenting conference. Children over the age of 6 or 7 can usually be interviewed.

I think my spouse’s behavior reflects instability and potential likelihood for harm to my children if my spouse does not undergo the proper treatment. Is there anything that I can ask the court for?

This is beyond the scope of this book, but you could ask for a Rule 63 psychological examination or a decision-making evaluation.

What is a parenting conference?

It is a meeting with a neutral third party who talks with both parties and then drafts a report to give to the court. It can be ordered by the court or requested by either party. (See “Parenting Conference Through the Courts,” earlier in this chapter.)