Child Custody - Parenting Time and Legal Decision-Making

Child Custody Attorneys in Scottsdale and Phoenix, AZ

Child Custody, Parenting Time, Legal Decision-Making and Visitation.

When a family court judge makes a decision regarding Custody of a minor child, the court is obligated to make its determination based on the Best Interests of a Child. To do this, the court uses a standard called, The Best Interest Factors.  The Best Interest Factors are used by family court judges when making decisions regarding custody, parenting time, and legal decision-making.

It is important that you familiarize yourself with Arizona custody and Parenting Time laws as you start this process. Knowledge of the law will take out the guesswork as to what determines the amount of parenting time each parent will have.

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Parenting Time and Legal Decision-Making

When most people think about divorce and parents fighting over children, the term “custody” naturally comes to mind. However, the word “custody” is misleading when used in family law because it generally makes people think of only one aspect of custody, mainly the question, “Who do the children live with?” But in reality, the term “custody” is used to describe both parenting time and decision making.

Parenting Time is the schedule of time during which each parent has access to their child. Each parent is responsible for providing the child with food, clothing and shelter during his or her parenting time. During his or her parenting time, that parent may also make “routine decisions” concerning the child’s care.

A.R.S. § 25-403.

1. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being.

The Best Interests of a Child is a standard by which a court determines what arrangements would be to a child’s greatest benefit, often used in deciding decision-making and parenting time matters and in deciding whether to approve an adoption or a guardianship.

The Law – A.R.S. § 25-403.

1. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being.

2. In a contested legal decision-making or parenting time case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child

Legal decision-making is the legal right and responsibility to make all non-emergency legal decisions for a child including education, health care, religion and personal care.

25-403.01. Sole and joint legal decision-making and parenting time

1. In awarding legal decision-making, the court may order sole legal decision-making or joint legal decision-making.

Parenting Plans

A Parenting Plan is a detailed plan that outlines a parenting time schedule, communication procedures, exchange procedures, how changes and violations of the plan will be resolved, a schedule to review the plan. It also details each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training.

Under A.R.S. 25-403.02, every parenting plan needs:

  • Designation of legal decision-making as either joint or sole
  • Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religion
  • A practical schedule of parenting time for the child, including holidays and school vacations
  • A procedure for the exchanges of the child, including location and responsibility for transportation
  • A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling
  • A procedure for periodic review of the plan’s terms by the parents
  • A procedure for communicating with each other about the child, including methods and frequency.

A tiebreaker provision is a section of your parenting plan agreement that determines which parent gets to make the final decision about an issue when the parents cannot agree. This type of provision can help avoid costly litigation and fighting over the children.

For instance, you could mediate all ties, before going back to court. Your “mediator” in this situation can be anyone you choose; an attorney, pastor, grandparent, social worker, counselor, psychologist or anyone else who can help you. You could decide that one parent can break the tie in two matters and the other parent breaks the tie in the other two areas. You could attempt to negotiate as many of these issues during the divorce as you can anticipate. If you know your child will need braces, plan for it now and negotiate it now, before anger or other future partners muddy up the water. Let’s say that you know your child will play soccer and it will be played on Saturdays. Saturdays are both mom’s and dad’s parenting time on every other weekend. You can write into your agreement that sports that fall on the non-visiting parent’s parenting time can be made up by agreement of the parties. Soccer that falls on both parents time alternately, when the parents have 50-50 parenting time may not be a reason to keep the child out of sports and there will be no make-up time. If you know that one grandparent always takes the kids to the lake in the summer for a week, write that into the agreement now. But do not put your child in the middle. We repeat: do not put your child in the middle.

More Parenting Time Information

The law favors equal parenting time when both parents are considered fit (meaning no criminal behavior, drug or alcohol abuse, neglect, domestic violence, etc.) and in most cases the court will order equal parenting time. Parents with equal parenting time share time with the child in a manner that assures that the child has substantially equal contact with both parents. The actual schedules that carry out this plan can vary with each family.

The legal parents of a child can decide a parenting plan schedule without intervention from the court. However, if an agreement cannot be reached, the judge will decide legal decision-making based on the best interest factors. The court may determine other factors that are necessary to promote and protect the emotional and physical health of the child.

A.R.S. 25-403.02 D. says that “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.”

Sole custody and legal decision-making is awarded to one parent if the other parent is deemed unfit because of alcohol or drug dependency, criminal behavior, child abuse, neglect or domestic violence.

25-403.01. Sole and joint legal decision-making and parenting time

A. In awarding legal decision-making, the court may order sole legal decision-making or joint legal decision-making.

B. 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:

  • The agreement or lack of an agreement by the parents regarding joint legal decision-making.
  • Whether a parent’s lack of an agreement is unreasonable or is influenced by an issue not related to the child’s best interests.
  • 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.
  • Whether the joint legal decision-making arrangement is logistically possible.

C. 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.

D. 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.

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