Child Custody Basics

In our experience, child custody matters are among the most contentious in family law. Every year, approximately one million children in the U.S.A. see their families changed through divorce. The ongoing health and emotional well-being of these children depends greatly upon how their parents communicate and interact after the dissolution of marriage. To help the children through this life-changing experience, we need to help the parents understand custody under Arizona law.

Determining Custody Arrangements — Legal Custody vs. Physical Custody

Judicial decisions over child custody matters are fully dependent upon determinations of what is in the best interests of the child. With that objective in mind, our laws divide custody into two essential components: “legal custody” and “physical custody.”

Legal Custody. Legal Custody has to do with how important decisions will be made regarding the child, such as educational decisions, medical and mental health decisions, and decisions regarding the faith that the child will be raised in. When the court awards a parent sole legal custody, that parent is able to make these important determinations with or without the other parent’s input. With joint legal custody, however, both parents have an equal say in these essential matters — the decision cannot be made unless it is by mutual agreement. In many cases, joint legal custody is awarded to both parents. Obtaining sole legal custody may be more challenging, but it is certainly possible. When making its custody decision, the Court considers many factors including whether a parent has a significant drug or alcohol addiction, has a significant criminal history, or has a history of domestic violence or child abuse. In some instances, a major factor for the Court is the pattern of each parent’s prior involvement with these types of important decisions, as well as how willing a parent is to consult with and involve the other parent.

Physical Custody. Physical custody is the amount of time the child will spend with each parent. This encompasses what the “regular” parenting schedule will be, as well as how holidays will be allocated, whether there will be a different schedule during the summer, and whether there will be special vacation times with the child. The parties can come up with their own parenting schedules or, if they cannot agree, the Court can impose what it believes is the best schedule for the child. Obviously, when parents can agree on a schedule, they maintain control of the details of the parenting plan as opposed to leaving it in the hands of a Judge. When left to the Court to decide, however, many factors will be considered by the Judge including:

  • the past pattern of involvement with the child;
  • the ability of each parent to place the child’s needs first (as opposed to the parent’s own needs); and
  • whether a parent can promote the relationship between the child and both parents, and not just focus on their own relationship.

Psychologists often become involved in this process, evaluating the family, interviewing the parties, and making recommendations to the Court regarding what they feel is best for the child.

Parenting Plans – Agreed to By the Parties or Imposed By a Judge

When parties agree on parenting issues, their agreement is reduced to writing and included in a document called a “parenting plan.” The parenting plan is then submitted to the Court for final approval. If approved by the Court, it becomes a binding, enforceable agreement on both parties. If the parents cannot reach agreement, then the matter proceeds to a trial and the Court will impose a parenting plan on the parties. There are many alternatives and possible solutions for parents to consider when making their custody decisions. The resolution of custody and visitation disputes requires parents to behave calmly and rationally (and in their child’s best interests) at a time when they are overwhelmed with the stress of the divorce and break-up. That’s a good reason for the couple to start working toward as many agreements as possible, early in the process. The more two parents can work toward resolving issues regarding their child, the less they leave up to a Judge. And the less uncertainty there is for the parents, the more stability there is for the child.