SB1127: Changes to Title 25 effective January 1, 2013
1.?? ?Family Law Terms:? A.R.S. 25-401
There have been changes to a few family law terms.? Some terms have not changed, but they are now located in different areas.? The term ?custody? has been completely replaced by the term ?decision-making.?
The term ?parenting time? has expanded its definition:? ?the schedule of time during which each parent has access to a child at specified times.?? Each parent is responsible for providing the child with the following during his or her parenting time:? food, clothing and shelter.? In addition, during each parent?s parenting time, that parent may make ?routine decisions? concerning the child?s care.
The term ?visitation? has not been replaced, but it now has a new definition, i.e. ?a schedule of time that occurs with a child by someone other than a legal parent.?? Visitation now specifically applies to grandparents and those standing in loco parentis.? Thus, parents have ?parenting time? and grandparents/in loco parentis have ?visitation.?
The term ?legal custody? has now been replaced with ?legal decision-making,? i.e. the legal right and responsibility to make all non-emergency legal decisions for a child including: education, health care, religion and personal care.? These four areas have been dubbed the ?spheres of decision-making.?
1.?? ?Jurisdiction (25-402)
The statute now requires the Court to determine whether it has jurisdiction before conducting any proceeding concerning: legal decision-making, parenting time, in loco parentis and visitation.? In determining jurisdiction, the Court must also consider the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), the PKPA (Parental Kidnapping Prevention Act) and any applicable international law concerning the kidnapping/removal of children.? Finally, the statute provides who may seek legal decision-making or parenting time: a parent in any divorce, separation, annulment, paternity or modification proceeding and a person other than a parent by filing a Petition for Third Party Rights (25-409) in the county where the child permanently resides.
1.?? ?Legal Decision-Making (25-403)
There were several additions and a couple of deletions to the ?best interest factors.?? The wishes of the child?s parent/parents as to custody and who has provided primary care to the child are no longer considered.? However, the statute now provides that the best interest factors are relevant to a child?s physical and emotional well-being.? The ?wishes of the child regarding custody? factor now specifies that the Court must consider the child?s wishes only ?if the child is of suitable age and maturity.?? The factor considering which parent provides more frequent, and meaningful continuing contact now reads:? ?frequent, meaningful and continuing contact,? thus, ?meaningful? now modifies ?contact? and not ?continuing.?? Finally, the statute adds a best interest factor, stating that ?the Court must consider the past, present and potential future relationship between the parent and the child.?
1.?? ?Sole and Joint Legal Decision-Making (25-403.01)
The new statute eliminates the requirement that the Court make ?written findings? of what is in the child?s best interest before determining custody.? The statute adds that the Court shall not consider either the parent?s or the child?s gender when approving parenting plans.
1.?? ?Parenting Plans (25-403.02)
The new statute eliminates the old requirements that 1) the parents must submit a proposed parenting plan before the Court can enter a legal decision-making order and 2) the parenting plan must contain a statement that the parents understand that joint custody (i.e. decision-making) does not equal parenting time.
The statute adds that, 1) when parents can?t agree on a parenting plan, each must submit a proposed plan to the Court and 2) the Court won?t prefer a plan because of the parent?s or child?s gender.? Finally, the Court must adopt a parenting plan that provides for both parents to share legal decision-making regarding their child that maximizes their respective parenting time and is consistent with the child?s best interests.
The minimal requirements for parenting plans now include:? 1) designation of legal decision-making as either joint or sole, 2) a practical schedule of parenting time for the child, including holidays and school vacations, 3) a procedure for the exchanges of the child, including location and responsibility for transportation, and 4) a procedure for communicating with each other about the child, including methods and frequency.
1.?? ?Domestic Violence (25-403.03)
The Court is now given discretion ?to provide a victim with written information about available community resources related to domestic violence,? i.e. the Court is no longer required to give this information.
1.?? ?Substance Abuse (25-403.04)
In addition to applying ?if the court finds that within 12 months of the petition/request to modify custody being filed a parent has a conviction under Arizona?s drug laws or DUI conviction,? the statute also applies if the Court finds that ?the parent has abused drugs or alcohol.?? The new statute also requires the Court to consider ?results of alcohol or drug screening provided by a facility approved by the department of health services.?
1.?? ?Relocation (25-408)
The new statute narrows the application of the 60 day notice requirement to parent with joint legal decision-making OR who has ?unsupervised? parenting time
1.?? ?Third Party Rights (25-409)
The new statute combines grandparent visitation (25-409) and non-parent custody (25-415) into one statute.? While much of the two old statutes remain the same, there are some deletions and additions.? ?Non-parent custody? (originally 25-415) is now ?third party legal decision-making? and located in 25-409.? The new statute deletes the old requirements that 1) the petition must be filed in the county where the child is found or permanently resides and 2) the petition must detail facts supporting rights to file the petition before filing it.
Regarding visitation, 25-409 provides that any person other than a legal parent may petition for visitation with the child.? Court may grant visitation rights on a finding that: visitation is in the child?s best interests and if any of the following are true: 1) one of the legal parents is deceased or has been missing for 3 months, 2) the child was born out of wedlock and child?s parents not married when petition is filed, 3) regarding grandparent visitation, the marriage of the parents has been dissolved for at least 3 months or 4) regarding in loco parentis visitation, a proceeding for dissolution/legal separation of the legal parents is pending at time of filing petition.
1.?? ?Petitions to Modify (25-411)
The old statute required a one year ?cooling off? period before one could file a petition to modify an existing custody order.? Now, the ?cooling off? period applies to decision-making and parenting time.
1.?? ?Sanctions for Litigation Misconduct (25-415)
This new statute establishes sanctions for a litigant if the Court finds that the litigant has done one or more of the following: 1) knowingly presented a false claim (with knowledge that the claim was false) regarding: a) the best interest factors, b) domestic violence or c) substance abuse, 2) knowingly accused an adverse party of making a false claim under these statutes with knowledge that the claim was actually true, 3) violated a court order compelling disclosure or discovery unless the court finds that the failure to obey the order was substantially justified or that other circumstances make an award of expenses unjust.
If the Court finds a violation as described the Court must award costs and reasonable attorney?s fees incurred by an adverse party.? The Court may do the following:? 1) impose additional financial sanctions on behalf of an aggrieved party who can demonstrate economic loss directly attributable to the litigant?s misconduct, 2) institute civil contempt proceedings on its own initiative, or on request of an aggrieved party, with proper notice and an opportunity to be heard, 3) modify legal decision-making or parenting time if that modification would also serve the best interests of the child.
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