Protecting Parents' Relationships With Their Children
Child custody can be a highly contentious issue for parents. The breakup of a relationship between a child's parents can have major implications for the family relationships at the center of a child's life. As a result, every party has a lot at stake.
Understanding Joint and Sole Legal Custody
In Arizona, the term "child custody" refers to the legal authority to make or participate in decisions about a child's health, education or religion. In the majority of cases, the courts grant the parties joint custody, which means that both parents must make decisions together with neither party having the final say. If there is a disagreement, courts require you to take the matter to mediation.
The basic legal standard in deciding child custody and visitation is what is in the best interests of the child. To make that decision, the courts must analyze all of the following factors:
- The child's wishes - Your child will not come to court and testify about who he or she wants to live with. The court may have your child interviewed by a psychologist or sociologist trained in interviewing children; however the interview is to explore the relationship the child has with each parent and their siblings. For older children, there may be more direct questions as to their preference.
- The parents' wishes - Obviously, courts will take into account your preference; however, they are also assessing the reasonableness of your positions under the circumstances of your case.
- The child's interactions with each parent, their siblings and any other party that has played a significant role in the child's life - This too will be explored in a child interview.
- The child's adjustment to home, school and community - Courts like to maintain the status quo for a child (maintaining the same school, residing in the geographical area where the child was raised), especially if the child is flourishing in their current surroundings. If a parent chooses to remain in the same vicinity where their child was raised, this can work in that parent's favor. It is important to think about where you are planning to live after the divorce as this could affect your parenting time.
- The mental and physical health of the child and each parent - The mental and physical health of a parent is not typically a relevant factor as most parties are physically and mentally fit enough to care for their child. Divorce and paternity cases are highly traumatic for individuals who may seek counseling or treatment to cope with the trauma. Unfortunately, you have to weigh the treatment you are seeking because it may be used against you in court. Before you start seeking treatment, seek the advise of an attorney to assure you are not hurting your case before it has even commenced.
- Which child is more likely to allow "frequent and meaningful" contact with the other parent - A major mistake made by parents is withholding contact from another parent. Of course, if there are issues of drug or alcohol abuse, domestic violence, or mental health issues, restricting a child's contact with the other parent may be warranted; however, the child should never be used as leverage in a case. If a judge sees that you have been unreasonable before or during a case in withholding access to the other parent, it will work against you.
- Who has been the child's primary caretaker - Although one party may have provided primary care, it is not automatically assumed that after a divorce the courts will maintain the status of the primary caretaker. The primary caretaker may now have to find employment; and the courts want to make sure that both parties have frequent and meaningful contact with the children. Before thinking that your parenting time will be restricted in favor of the parent that was able to stay home with the children, call me to explore strategic arguments to argue for you and your spouse sharing time with the children.
- Whether a parent used duress or coercion in obtaining a custody agreement - Duress and coercion can take many forms. Withholding financial resources to get the other party to give up is one such action commonly taken. The judges can identify these types of actions; and as with unreasonably restricting the other parent's visitation, it can hurt your case.
- If the parents have taken the required Parent Information Class - In Arizona, a parent of a minor child involved in a paternity or divorce action must attend a four hour parenting class approved by the court. The class is not to teach you how to parent, but primarily how to co-parent with the other party after the divorce or separation. If you don't take the course, your rights could be affected.
- Whether a parent was convicted of making a false report of child abuse - Falsely alleging child abuse, especially sexual abuse may forever hurt a parent from ever having the ability to co-parent with the other parent. Known as the "nuclear bomb approach" to litigating a custody case, making such allegations negates the possibility of any type of civil discussion in a case. If the allegations are true, they should always be reported. However, if you are trying to gain leverage in a case with false allegations of abuse, attorneys and judges will see through it; and children involved in such cases will later turn against the parent making such allegations.
- Whether there has been domestic violence or child abuse - This issue speaks for itself. Domestic violence and child abuse, if true, may result in automatic presumptions of custody without an analysis of any of the other factors.
Presumption of the Sex of the Parent
Under Arizona law, there is no presumption that one parent is a more fit parent because of their sex. Therefore, both mothers and fathers begin a child custody case on more or less equal standing. However, if one parent has a history of drug or alcohol abuse, mental health issues, child abuse or criminal behavior, these factors will have an impact on how the court is likely to rule. In these circumstances, the court may award the other parent sole custody, which allows them to make all decisions as to where the child will attend school, what doctors or counselors the child will see, and what religion they will practice.
Even if one parent is named as the primary residential parent and has the majority of parenting time, both parties will typically still share joint custody. Logistical issues may have an influence on the decision, though less so than in the past.
Pursuing a Plan That Achieves Your Parenting Goals
When most people think of child custody, they think first and foremost of residential and visitation rights. These factors make up what is known as the child's parenting plan. Before a divorce involving children or a paternity case involving custody and parenting time can be finalized, the court must approve a parenting plan.
Ideally, a child's parenting plan should be specific enough to govern all possible contingencies, while being sufficiently flexible so parents do not have to return frequently to court to clarify their rights and obligations, or constantly battle a party looking for loopholes to harass the other party.
I am experienced at drafting meaningful and effective parenting plans. I have also argued hundreds of highly contentious and complicated custody and parenting time actions. I have worked with many, highly qualified and respected psychologists who I call on to testify in cases and make recommendations to the courts. I have successfully handled highly toxic sexual abuse and domestic violence cases. It doesn't matter what it is, I have probably seen the issue or something similar to it. I receive referrals from other attorneys who are not equipped to handle the complexities of certain custody cases, or who do not wish to do so. Whatever the issue is, I can handle it.
To discuss any aspect of child custody and visitation with an experienced Arizona lawyer, contact me at my Tempe office today.
