PARENTING TIME OR VISITATION, AND LEGAL DECISION-MAKING
The court shall order joint legal decision-making, unless statutory exceptions apply. A.R.S. 25-403.02B.
The court cannot prefer a parent for a parenting plan because of the parent’s or child’s gender. A.R.S. 25-403.02B.
VISITATION and parenting time are the same thing. Arizona statutes use the term parenting time.
EQUAL PARENTING TIME–There is not a presumption of equal parenting time in Arizona in child custody matters. The statutory requirement is: The court shall maximize the respective parenting time for mother and father, consistently with the child’s best interests and statutory exceptions. A.R.S. 25-403.02B.
Equal parenting time is much more common in Arizona under these statutes, in effect since January 1, 2013. A typical parenting order will be a 5-2-2-5 schedule or every other week. Prior to the change, primary caregiver was a statutory factor. With a primary caregiver factor, it was more common to see a mother who had been a stay-at-home mom be the primary custodial parent, also referred to as the primary residential parent, and have the father awarded parenting time every other weekend and one night a week, for example. The statute has effectively changed the normal practices of the courts.
PARENTING PLAN SCHEDULES refer to 5-2-2-5 schedules, meaning mother has 5 days, father 2, then mother 2, then father 2, or every other week equal time, or every other weekend plus one night a week. There are many variations, and the age of the child may make a difference. For more information, take a look at the MODEL PARENTING PLANS: Planning for Parenting Time: Arizona’s Guide for Parents Living Apart.
Statutory exceptions to maximizing respective parenting time include the factors in A.R.S. 25-403, as well as domestic violence and child abuse, A.R.S. 25-403.03; drug or alcohol abuse, A.R.S. 25-403.04; and sex offenders and murders, A.R.S. 25-403.05.
DISCUSSION OF FACTORS WITH EXAMPLES
The following factors are considered for parenting time, as well legal decision-making, pursuant to A.R.S. 25-403:
1) Past, present and potential future relationships of the child
The ideal is to have two wonderful parents for a child. If one parent has been estranged, or had a limited relationship, the goal may be to improve that relationship over time, possibly through family counseling.
2) Interaction and relationship of parents and child, as well as siblings or other persons
It is normal for one or both parents of a child to move forward after a divorce into other relationships, either remarrying or having a boyfriend or girlfriend, which affects the child. The child may have relationships with step-siblings, and with half-siblings from the new relationships. Unusual Example: Father limits his time with his child or children to every other weekend, simply because the children don’t have a good relationship with his new spouse. The reason the relationship isn’t good might be a more complex issue, with allegations that the former spouse is alienating the children.)
3) Child’s adjustment to home and school
Ideally, divorcing parents of a child would live within a half mile of each other and the child’s school. Realistically, parents remarry or start new relationships with people on the other side of the valley, or they have a job elsewhere, or they may even relocate out of state. Young children (grade school) tend to be resilient. Parents move to new homes, new jobs and new schools even when there isn’t a divorce. A child in high school may have a strong desire to stay in the same school with the same friends.
4) Child’s wishes, if child is old enough
Children do not testify in court. It would harm them to be placed in the tension of a court trial setting, or to testify about their own parents. They can be interviewed, at the request of a party, through a parenting conference, and the parenting conference provider (usually a counselor) will write a report about what they say to the judge, confidentially if necessary (meaning the parties won’t know what the child said). A four-year-old will have nothing useful to say. An eight-year-old might be worth interviewing, but he or she may request more parenting time with one parent for the wrong reason—for example, because that parent lets them stay up too late, or doesn’t make them do homework. By age twelve, the child’s wishes may be significant to the court. The older the child, the more their wishes matter, and the harder it would be to get them to comply with a schedule they don’t like. (When they turn eighteen and graduate, they can and will do what they want.)
5) Mental and physical health of parties and others involved
I won’t cite any statistics, but mental illness (for example, bipolar, anxiety, depression) is common in our society and in divorces. If a person is stable and is a fit parent, it may not be a factor. If a person is prescribed medication, they may be required to take it. If a person is suicidal or mentally unstable, it is an obvious factor.
6) Which parent will allow frequent, meaningful and continuing contact with the other parent
The statutes and law of Arizona are designed to protect the right of access by both parents to the child. The purpose of this factor is to give parents an incentive to be reasonable in sharing parenting time.
Even before the entry of a court order, it is a class six felony, Custodial Interference, to withhold the child from the other parent. A.R.S. 13-1302A2 and E3. If the child is returned within than 48 hours, it is a class one misdemeanor. A.R.S. 13-1302E4.
7) Intentional misleading by one parent, or unnecessary delay
The court can consider misleading conduct or delay by a parent in awarding joint legal decision-making, or for parenting time, although the court must act consistently with the best interests of the child.
8) Domestic violence or child abuse by either parent
Pursuant to A.R.S. 25-403.03, the court shall consider the safety of the child and the victim of the domestic violence of primary importance.
9) Coercion or duress in obtaining an agreement
10) Completion of parenting class
11) Conviction of either parent for false reporting of child abuse or neglect
Allegations of false reporting of child abuse or neglect are common in family law cases, in my experience, but it is not common for them to be prosecuted. The requirement of conviction is distinguished from factor #8.
The information on this site is not legal advice. If you need legal advice, contact an attorney. Our attorneys are licensed in Arizona only.