During the divorce process, tensions often run high amidst discussions of property division and spousal support. When the question of child custody is added to the mix, the stakes are even higher with both parents vying for adequate time with their young ones. At Garnice Law PLLC, our child custody attorneys understand the delicate nature of child custody matters and our compassionate legal team works closely with our clients to ensure the best interests of the children and parents are protected.
When most people think of child custody, they think of where the child will live. In reality, child custody encompasses more than just physical residence; it also involves the authority to make decisions on behalf of the child. In Arizona, child custody is legally referred to as “legal decision making” whereas time spent with the child is referred to as “parenting time.” There is generally a presumption that parents should share legal decision-making authority and that parenting time for each parent should be maximized, unless this arrangement is contrary to the child’s best interest.
The courts generally prefer that issues of custody be decided amongst the parents, whenever possible. If there are disagreements and a custodial arrangement cannot be reached, the court will often suggest that parents attend mediation to arrive at an agreement. If the child custody mediation hearings do not end in agreement from both sides, a trial will commence. During this legal proceeding, the court attempts to identify the best interests of the child and issues a ruling.
In determining the best interests of the child, the court will evaluate a long list of factors, including:
- The relationship of the parents and child
- Child’s preferences (depending on age and emotional maturity)
- Mental and physical health of each parent and of the child
- Any problems the parents might have, or had in the past, such as substance abuse or a criminal record
- How the children thrive in the household with each parent, and within the community
- Parents’ work schedules
- Each parent’s willingness to work with the other parent for the benefit of the child
Legal Decision-Making Arrangements
Generally speaking, there are two types of custody arrangements.
Sole Legal Decision Making – This is when one parent has the authority to make all important decisions on behalf of the child. This may include decisions on schooling, religion, extracurricular activities, and healthcare
Joint Legal Decision-Making – This arrangement requires that both parents be actively involved in the decision-making process on all major issues concerning the child.
During the custody proceeding, the court will issue an order concerning how much time the child will spend with each parent. If the child will spend much of his or her time with one parent, that parent may be referred to as the “primary residential parent”. It’s important to note that parenting time is independent of legal decision-making. For instance, one parent may have a very demanding job with long hours and may have much less parenting time with the child during the workweek, however, he or she may have joint legal decision-making authority.
A parenting plan must be included in the custody order. This plan outlines the following:
- Designation of legal decision-making authority
- A parenting time schedule
- Details about how the child will be transported between parents
- Acceptable communication between the parent and child when the child is in the other parent’s care
- A procedure for how the two parents are to communicate
The Role of the Parenting Coordinator
In cases of high conflict, the court may order the parents to consult with a Parenting Coordinator for assistance. This individual is often an attorney or mental health professional who is there to help resolve any disputes that may arise after final parenting orders are entered. In most cases, the court will allow the parents to select a professional to fill this role but if they cannot agree on one, the court will appoint one. The Parenting Coordinator is supposed to help parents resolve any conflicts and keep subsequent issues out of court. The Parenting Coordinator is usually assigned to the case for a set period of time, and cannot be “fired” by the parents should disagreements arise. Instead, the court must intervene and decide whether the coordinator can be removed.
Child custody cases are complex with the outcome of these matters having long-term consequences on your children’s well-being and your family’s future. With so much on the line, you need the assistance of an experienced family law attorney who can guide you through the legal process, serve as your advocate in negotiations or at trial and help to safeguard against any pitfalls that may arise in the future. Garnice Law PLLC is well-respected in the Scottsdale community for providing high-quality legal counsel to parents, ensuring their best interests and those of their children are protected during the divorce proceedings and long after the final parenting orders have been issued.
Common Child Custody FAQs
- Is the non-custodial parent entitled to visitation with a child that primarily resides with the other parent?
- What is joint legal custody?
- How is child custody determined?
- During our marriage, my wife and I had a three-month trial separation. After we reconciled, she told me she was pregnant. Now that we are getting a divorce, I am starting to wonder if our daughter is mine. Do I have the legal right to find out whether she is my daughter? And if I’m not actually her father, what are the implications in our custody and support negotiations?
- What is Conciliation Services?
Q: Is the non-custodial parent entitled to visitation with a child that primarily resides with the other parent?
A parent is entitled to visitation with a child unless there is a finding by the judge that such visitation will endanger seriously the child’s physical, mental, moral or emotional health.
Q: What is joint legal custody?
Joint legal custody means the parents jointly make major decisions about the children such as religion, education, health care, and residence. Sole custody means one parent makes these decisions.
With either joint legal or sole legal custody, there must be an arrangement for the time-sharing of the child or children. Some counties such as Maricopa and Pima Counties have developed Access Guidelines to help the judge and parents determine the access of each of the parents to the child or the children.
Q: How is child custody determined?
Child custody is determined by a judge according to the factors set forth in the statute. The applicable statute is Arizona Revised Statutes §25-403.
The factors the judge considers are the wishes of the parents and the child (if old enough to express a preference); the interaction of the child with the parents and siblings; the child’s adjustment to home, school, and community; the mental and physical health of the parents and the child; which parent is more likely to allow frequent and meaningful contact with the other parent; which parent or parents have provided primary care of the child; and the nature and extent of coercion or duress used by a parent in obtaining an agreement for custody.
Q: During our marriage, my wife and I had a three-month trial separation. After we reconciled, she told me she was pregnant. Now that we are getting a divorce, I am starting to wonder if our daughter is mine. Do I have the legal right to find out whether she is my daughter? And if I’m not actually her father, what are the implications in our custody and support negotiations?
You are faced with quite a dilemma. If you find out she is not your biological daughter, you will no doubt feel a variety of emotions that could complicate your relationships with family members. If you do not find out who the real father is, then your relationship with her may become contaminated with doubt. This could easily be acted out in negative ways towards her, her mother, and even the other children.
We would recommend that you decide whether or not you wish to find out whether or not you are her biological father, which the court in most cases, can direct via genetic testing, if either party refuses to participate on their own.
Needless to say there are legal issues of importance here, mainly waiver and estoppel. These issues must be discussed in detail with the attorney representing you.
Regardless of the paternity results, you would do well to see a counselor or therapist to process the feelings you and your wife have about this issue.
Q: What are Conciliation Services?
Conciliation Services is a separate division of the court consisting of trained family counselors and mediators that are available to assist litigants going through a divorce or other family disputes to assist in resolving those disputes without the necessity of a trial. Conciliation services are offered free to the public.