Father’s desire to send high school age child to out-of-state boarding school would substantially reduce mother’s parenting time per parenting agreement incorporated in their divorce decree, requiring best interest analysis of statutory factors in Arizona case summary.
The parties were married in 1995 and had three children together (born in 1998, 2000, and 2004). In 2008, the parties were divorced. Incorporated into the divorce decree, their parenting agreement included the following terms:
- They would have joint legal and physical custody;
- They would share key decision-making regarding the “education, healthcare, and religious upbringing” of the children;
- They would have equal parenting time, the children staying with “each parent for seven consecutive days on an alternating basis”;
- Who would pick-up the children from school on designated days and drop-off them off with the other parent;
- Who would have the children for birthdays and holidays; and
- That neither parent would “commit a child to an activity which … infringes upon the other parent’s parenting time …” without the other parent’s prior consent.
The father wanted to send their middle son (born in 2000) to a California boarding school as a Freshman student (this high school was the Cate School). The mother objected that it would substantially impact her parenting time and was not in the child’s best interests. She wanted the child to attend Tucson’s University High School where she could maintain parenting time.
In February 2014, father motioned for permission to send the child to boarding school for high school. (Aside: The mother consented to send the oldest son back to Cate School for his Junior year. That child wished to continue his high school education at the out-of-state boarding school after already completing his Freshman year there.)
In support of his request, father testified that he had attended Cate School in his youth, as did three of his siblings, and that it was becoming a family tradition. At both conciliation court and trial, the child expressed his wish to also attend the California boarding school.
Trial Court Did Not Consider Custody Factors
The trial court determined the motion to raise the issue of school placement, but not custody or parenting time. Ruling for the father, the trial court determined that it was in the child’s best interests to attend Cate School because, one, it was the child’s expressed desire; and, two, it was a strain on the children to go back-and-forth between their parents’ households. (Third, no question regarding parental fitness.) The trial court did not consider any relocation issue or custody modification issue, despite the impact on the mother’s parenting time should the child be sent to boarding school out-of-state. Mother appealed.
Impact on Parenting Time Is a Custody Issue, Not a School Placement Issue
Noting mother’s parenting time would be substantially reduced from 182 days per year to 61 days per year, the Court of Appeals held that the lower court erred as a matter of law.
Because the trial court viewed the matter as a school placement dispute, it erroneously applied the four factors in Jordan v. Rea, 221 Ariz. 581, 212 P.3d 919 (Ariz. Ct. App. 2009), known as the “modified §25-403(A) factors.” Jordan applied to school placement in a local school, neither parent in that case alleged a change in parenting time as a consequence of the school choice. Jordan differed from the case at bar.
In the instant case, the mother would experience a 66% yearly reduction in the parenting time allocated to her in the divorce decree, “a profound curtailment of her parental rights.” The trial court never considered the impact on mother’s parenting time, instead it focused only on the Jordan modified factors in granting father’s motion as being in the child’s best interest.
The mother argued, successfully, that the real issue was “substantial and disputed modification of parenting time.” The appellate court agreed. Relocating the child to attend boarding school out-of-state in California is a custody decision, not a school choice decision.
The trial court failed to consider the child’s best interests in having parenting time with his mother as required by ARS § 25-103(B); and failed to make best interests findings required under ARS § 25-403. In a post-decree dispute between parents under a joint custody order, such as this, a best interests of the child standard should apply. The factors relevant to parenting time are included in ARS § 25-403(A).
Notably, Title 25 was amended in 2010 and 2012, placing “new emphasis on the fundamental importance of parenting time.” In 2010 it became public policy in Arizona that it’s in the best interests of the child to have “substantial, frequent, meaningful and continuing parenting time with both parents.” See ARS § 25-103(B)(C).
The Court of Appeals held that the trial court erred as a matter of law and vacated the decision. The trial court failed to consider crucial statutory factors and failed to make mandated best interests findings. The case was remanded to address the best interests factors.
Baker v. Meyer, 2 CA-CV 2014-0107 (April 3, 2015)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about Arizona’s child custody factors, take a moment to read our discussion on child custody details.