The Arizona legislature is considering significant changes to the state’s child custody laws. First, the proposed new law essentially creates a presumption that parents will be awarded joint custody (meaning that the parties are to make important decisions for the children together). Arizona Revised Statute (“A.R.S.”) § 25-403(C) would state: “In a disputed family law matter involving children, if both parents are found to be fit or capable to be a parent, the court shall not award sole custody to one parent unless both parents agree.”
A.R.S. § 25-408(A) would be amended to state that if a parent petitions the court claiming that the other party’s “parenting time would endanger seriously the child’s physical, mental, moral or emotional health” and the court denies the petition, the petitioning parent must “immediately pay to the other parent all attorney fees and court costs associated with defending against those allegations.”
This law, if passed, should create some concern as it is likely to have a chilling effect on reporting parental unfitness to the Court. AZ Parents will be afraid to allege the other parent is unfit or incapable of parenting because, if they are unable to convince the Court, they will have to pay attorney’s fees and costs. As the Court’s primary concern in AZ child custody matters is the children’s best interests, the law should encourage reporting unfitness. Of course, if a parent brings a claim in bad faith, that parent should be sanctioned. But, does it make sense to sanction a parent who simply does not have sufficient evidence to convince the Court of unfitness? Not every abusive parent leaves bruises. Not every alcoholic parent passes out in public. Abused individuals often do not contact the police or go to the doctor (which would create a record of abuse) because they are too afraid to do so.
Are there options to going to Court when you have concerns about the other parent’s fitness? Mediation in Arizona is always an alternative. In mediation, the parties can agree to protections for the children when a parent has real or alleged fitness issues. For example, the parties can agree to drug or alcohol testing, counseling, supervised visits, or anger management classes as a condition to parental access.
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
