Child custody in Arizona is best settled through voluntary agreement between the parents. So it is not surprising that only a small percentage of custody disputes are actually decided in a courtroom. When custody cases do reach the judge, he or she considers many factors and examines the evidence presented. If your child custody issues appear to be heading toward litigation, then be sure to read our article about “Arizona Divorce Basics” to get started.
Arizona’s child custody statutes include the Uniform Child Custody Jurisdiction and Enforcement Act, which addresses jurisdictional issues. The Interstate Parental Kidnapping Prevention Act is a federal statute which also addresses serious child custody jurisdictional issues.
When a parent fails to comply with a court’s order, our contempt statutes can provide a solution to that problem.
In most family law cases, the parents are able to compromise on their custody arrangements without turning the decision-making over to the judge. In Arizona, the parents may settle custody and access issues by a private agreement, although it must be in the best interests of the child. Until a settlement is reached, or until the court has ruled on custody, each parent has co-equal rights to the physical possession of a child of the marriage. Until there is a written document establishing the parents’ respective custodial and parenting time rights and responsibilities, the custody arrangements are largely in flex and can be changed on a whim by either parent.
When custody issues are litigated in court, several principles apply. First, determining the primary residential parent depends upon what is in the best interests of the child. What is in the best interests of the child requires an in-depth examination of the past and present conduct of the parents, which is the best predictor of how parents will behave in the future. The judge has wide discretion in making their determination. Keep in mind that review of the family court’s custody decision is very limited. That is because appellate courts are unwilling to substitute their judgment of the facts for that of the family court judge who personally presided over the proceedings. Second, although the child is the focus of the custody proceedings, he or she may not necessarily be a participant. Allowing a child to participate could be unduly traumatic — the child may be too young or too fragile emotionally to comprehend what is taking place or the reasoning behind the questions asked.
Arizona case law, A.R.S. §§ 25-401 through 25-415 on child custody and visitation, and A.R.S. §§ 25-1001 through 25-1067 as the Uniform Child Custody Jurisdiction Act, provide parameters for judicial actions regarding child custody. Any parent, relative, person, agency, organization, or institution claiming custody over a minor child may file a petition, motion, or other complaint or claim in court.
The dominant principle in all child custody actions, including custody modifications, is that custody will be awarded to the person who the court believes will act in “accordance with the best interests of the child.” The statute gives the judge wide discretion in considering the factors bearing on the child’s best interests and the weight the judge assigns to each factor.
The factors considered by the court are many and include matters that could affect the child’s physical, mental, emotional, moral, and spiritual development. The child’s age and developmental needs are very important to the analysis. Each parent’s caretaking abilities, home environment, and time actually available to spend with the child are all considered by the court. The judge may consider the child’s relationship with each parent and with other siblings. The weight, or importance, associated with each factor is discretionary for the judge. If the parents want to retain as much control over their custody arrangements as possible, then they should work diligently toward a voluntary agreement.
The right of a parent to custody of the minor child is a substantial fundamental constitutional liberty interest that will not be interfered with — that is, unless a need to protect the welfare of the child demands doing so. As against other relatives and third parties, the natural parents are entitled to custody in an initial proceeding, absent a finding of parental unfitness.
As you might expect, most custody battles are between the child’s biological parents. There is no legal presumption favoring one parent over the other. Arizona does not recognize any maternal “tender years” preference over young children. In practice, though, judges are inclined to award primary physical custody of young children to the mother, particularly if she has been the child’s primary caregiver.
A family court judge “hears” child custody matters in Superior Court as a civil domestic relations matter. The judge has the opportunity to observe firsthand the demeanor of both parties and all witnesses. This is why the court has such broad discretion in making custody determinations.
The judge has authority to award joint custody so that both parents share in the physical custody and decision-making for the child, or to give primary physical custody to one parent with parenting time privileges to the other, or to award one parent with sole custody meaning that parent has primary physical custody and decision-making authority, with the other parent having access time, or visitation, with the child.
Very seldom will a parent be denied visitation based on a finding that the denial is in the child’s best interests. Parenting time may be restricted, monitored, or supervised when the court is convinced of a risk of harm or danger in the visit. The “supervisor” could be a relative, family friend, social worker, or mental health professional. The supervised access could take place in the visiting parent’s home, or at an agreed upon neutral location outside the home, such as the office of a mental health care professional when appropriate under the circumstances. If parent access begins as supervised visitation, the court’s order will often phase-out supervision once the parent has established his or her stability and reliability around the child.
Many parents believe that the other parent’s failure to pay child support on time means that visitation can be withheld. This belief could not be farther from the truth. Child support and child custody are two distinct legal issues. A parent cannot withhold support or suspend parenting time without a judicial order. Enforcement of support obligations are only handled through the child support enforcement agency and through court action.
The timeline for bringing claims or motions involving child custody and visitation extends throughout a child’s minority. A child custody action may be filed independently, or it may be joined with another domestic relations action, such as a divorce or legal separation. After a child custody order is issued, the court retains continuing jurisdiction throughout the child’s minority. Those child custody orders may be modified or vacated when a party shows there is a substantial and continuing change in circumstances.
Even though Arizona courts maintain jurisdiction over minor children at all times for purposes of custody and support, the parents may still arrive at an agreement with respect to custody. Avoiding litigation by arriving at a mutual custody agreement also helps the child adapt to a post-divorce lifestyle without the anguish associated with litigation between parents.
A properly drafted separation agreement will provide the parents with some flexibility to deal with minor changes in circumstances. Once finalized, the separation agreement is incorporated into the judge’s divorce decree and enforceable and modifiable as a court order. Any future modification of the child custody order requires a showing of substantially changed circumstances.