Tuesday, November 5, 2013

Legal Decision-making and Parenting Time in Arizona

       One of the common inquiries I receive regarding custody battles in Arizona is with respect to people seeking "full" custody.  It is common for I and many of my colleagues to hear this term.  However, in Arizona, neither the words "full" or "custody" are actually used when the Court makes custodial determinations regarding minor children.  In the past, "custody" was broken up into two areas: legal custody and physical custody.  Legal custody dealt with major decisions, such as major medical or educational decisions the parties would make on behalf of the children.  Physical Custody dealt with Parenting time.

Legal Decision Making

 Overwhelmingly, courts typically awarded joint legal custody, unless there were major issues with one of the parties (ie drugs, significant acts of domestic violence, etc.).  However, it was all to common for individuals to ask for sole legal custody, even when it was clear there was no justifiable reason for it.  I believe this is, in part, what led to a shift in terminology.  Now, the statute calls legal "custody" legal "decision-making."  This, to me, has been an effective change.  It helps separate the two issues of legal and physical custody, and I've noticed that legal decision-making is becoming far less of an issue.  Usually, unless there is a major concern with one of the parties, joint legal-decision making is often a foregone conclusion.  Rather, the dispute often becomes more focused on whether a party should be given "final decision-making authority."  Final decision-making authority gives an individual final say over major decisions if their is a dispute as opposed to it going through mediation.  This doesn't preclude the other party from taking the issue to Court, but it does give the with final say additional authority.  It is very similar to sole decision-making, except that the individual must discuss the issue with the other party before exercising final say.  It should not be presumed that they can make the decision unilaterally or arbitrarily.  Often, I see final say pushed in cases where one parent is the primary residential parent and the other parent has a more limited parenting time schedule.  Further, seeking "final decision-making authority" is much easier to pursue in Court than sole legal decision making.

Parenting Time

 When inquiries pour in over "full custody," I have usually found that what people are really talking about is parenting time- and, more specifically, having the child all or a majority of the time.  In Arizona, the law was recently modified to indicate that the Court should "maximize" each parties' parenting time with the minor children.  As such, the idea of "full custody" is not something that the Courts should seek after- unless, of course, there are facts to show otherwise.  When the new law came out, there has appeared to be a big push for "equal parenting time" in order to "maximize" each parties parenting time.  If feasible, and if the parties are both fit and involved, I believe equal parenting time is the trend.  That said, there are several factors a Court will look at to determine parenting time, and there is no presumption of equal time.  That means, that the Court is required to look at the factors independently before making any determination.  The Court also must determine what is in the "best interest of the children."  Since there is no presumption of equal time, the party seeking a "less than equal parenting time" does not have the burden to prove that it should be less than equal.  Rather, as noted above, the Court makes a determination based on the factors. The factors can be found here.

Ultimately, a Court is required to determine what is in the best interest of the children.  These cases are often very fact sensitive, and the rulings will vary greatly depending on each case's unique sets of facts.