CHANGES IN ARIZONA’S CUSTODY LAWS

Beginning January 1, 2013, the Court will no longer use the term “sole custody” or “joint custody.”  Instead, the Court will use “sole and joint legal decision-making.”

The relevant definitions are set forth in A.R.S. § 25-401:

2. “Joint legal decision-making” means both parents share decision-making and neither parent’s rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.

3. “Legal decision-making” means the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions. For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.

5. “Parenting time” means the schedule of time during which each parent has access to a child at specified times. Each parent during their scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child’s care.

6. “Sole legal decision-making” means one parent has the legal right and responsibility to make major decisions for a child.

Some other important changes in the laws are set forth below:

  • A.R.S. § 25-403 states that, in determining legal decision-making, the Court will consider:  “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 a parent.”
  • A.R.S. § 25-403.01 alters § 25-408 to state that a parent without sole or joint legal decision making is to have not only “frequent” and “continuing” contact with the child or children, but also “substantial” and “meaningful contact” (unless the parenting time “would endanger the child’s physical, mental, moral or emotional health.”)
  • A.R.S. § 25-403.02 states that the Court “shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.” Parties are required to submit parenting plans, which must now include additional terms, including procedures for exchanges and communicating about the child or children.  Id. 
  • A.R.S. § 25-403.04 now states that the fact that someone has “abused drugs or alcohol” in the past twelve months creates a rebuttable presumption that sole or joint decision-making is not in the child’s or children’s best interests.  Previously only a conviction of a drug offense led to that presumption.
  • A.R.S. § 25-415 now requires a litigant to pay the other party’s costs and reasonable attorney’s fees if a litigant knowingly presents a false claim or defense, or violates disclosure or discovery requirements (unless the failure was substantially justified or it would be unjust).  The Court has the authority to impose additional sanctions, modify decision-making or parenting time (if in the child’s best interests) and find a party in contempt. A claim is not considered “false” if it is “merely unsubstantiated.”

What do these changes mean to potential litigants? It is just as important as ever for parents to try to reach agreements. Judges will do their best to create orders that will benefit children, but parents are always in the best position to make decisions for their own children. Further, litigation always carries the risk of unfavorable decisions. Mediation helps parents work together and craft workable parenting plans (with the help of the mediator), even when the parents are experiencing a high level of conflict.

Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

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