Protecting Parents’ Relationships With Their Children
Child custody can be a highly contentious issue. 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, we no longer use term “custody”. The term has been replaced with “legal decision making”, which 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 decision making authority, 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.
According to Arizona statute 25-403, the basic legal standard in deciding decision making authority 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 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 to care for their child. Divorce and paternity cases are highly traumatic for individuals may seek counseling or treatment to cope with the trauma. Unfortunately, you have to consider the treatment you are seeking because it may be used against you in court. Before you start seeking treatment, seek the advice of an attorney to assure you are not hurting your case before it has even commenced.
- Which parent is more likely to allow frequent and meaningful contact with the other parent – A major mistake made by parents is withholding the child from the other parent. Of course, if there are issues of drug or alcohol abuse, domestic violence, or mental health problems, 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.
- 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.
- 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 – This can take many forms from making false claims to the police or Child Protective Services about the other parent to coaching your child. I have handled hundreds of complex cases involving false claims and seemingly entrenched children. I have a team of experts that I involve in many of these situations to investigate and determine what is fact or fiction in the most efficient way to assure parenting rights are not interrupted.
- 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 there has been domestic violence or child abuse.
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.