What You Need to Know About Child Custody
By Zachary Mushkatel on September 25, 2018
Ending a marriage or serious relationship is never easy. Unfortunately, breaking up becomes a lot harder when there are children involved. Matters surrounding child custody are typically the most pressing concern for parents going through a divorce or separation. What you need to know about Child custody in Arizona.
What You Need to Know About Child Custody in Arizona
If you believe a custody battle may be in your future, it’s important to know what to expect. Being informed can help you make smart decisions that protect your interests and produce the best possible outcome for your child.
How Is Child Custody Decided in Arizona?
There are two different types of custody that are awarded to parents in Arizona. As of 2013, Arizona law no longer uses the terms “custody” or “visitation,” in favor of the more neutral terms “legal decision making” and “parenting time”:
Legal decision making refers to the authority to make important decisions about a child’s medical care, education, religious practice, and other major parenting issues.
Parenting time is the amount of time a child spends in your physical care. Both types of custody can be granted solely to one parent, equally to both parents, or split somewhere in the middle.
A generation or two ago, many states adhered to case law that supported the “tender years doctrine” approach to custody. These laws favored the mother in child custody decisions under the presumption that children (especially young children) fared better when they lived with their mother. Arizona law does not allow a judge to show preference for either mothers or fathers based on the parents’ sex. Instead, a judge must make the custody decision that is in the “best interest of the child.”
To determine what decision-making and parenting time arrangement works in the best interest of the child, the judge will consider all relevant factors under Arizona law. Some factors that the court may take into account include:
- The child’s relationship with each parent (past, present, and future)
- The bond a child may have with each parent, siblings, and other family members
- The child’s attachment to his or her present home, school, neighborhood, and community
- The child’s preferences, if the child is old enough
- The physical, mental, and emotional health of each party
- The parent’s willingness to foster the child’s relationship with the other parent, except in cases of domestic violence
- The parent’s honesty and integrity during the litigation process
- Any instances of domestic violence or child abuse
- Any use of duress or coercion to reach a legal decision making or parenting time agreement
- Any other factors that the court believes are relevant to the child’s physical or emotional wellbeing
The court presumes it is in the child’s best interest to have a strong relationship with both parents. Generally, at least some parenting time is always granted to each parent, unless the child’s physical or emotional wellbeing is being threatened.
What Is the Court Process Like?
When a couple split up in Arizona, they are allowed to work out legal decision making and parenting time issues on their own. The parents are encouraged to create a parenting plan that lays out their mutually agreed upon terms. The court will accept the parents’ decision making and parenting time agreements as long as they do not betray the child’s best interests. If the parents cannot reach an agreement on one or more issues, they can ask the court to decide for them.
When a child is born to a married woman, the law assumes her husband is the legal father of the child. If the mother and father were not married at the time of the child’s birth, the father will have no parental rights until paternity has been established in court. The parents must prove the father’s paternity before they can ask the court for assistance with child custody matters.
If the parents are going through a divorce or legal separation, hearings on child custody matters can be held as part of the proceedings. At the hearing, the judge will listen to both sides’ arguments and make the decision he or she believes is in the child’s best interests.
Does Custody Affect Child Support?
The Arizona child support guidelines use a number of factors to determine how much support a child is owed, including the income of each parent, the number of children being supported, and any insurance premiums or child care costs being paid.
Another major factor in determining the amount a non-residential parent pays in child support is how much time he or she spends with the child. The amount of parenting time received greatly impacts the amount of child support that may be owed. A nonresidential parent with an 80-20 parenting time arrangement and a significantly higher income than his or her former spouse will pay a substantial amount in child support. Meanwhile, parents with 50-50 joint physical custody and relatively equal incomes may not need a child support order at all.
How Can You Modify a Child Custody Agreement in Arizona?
Once a legal decision making or parenting time order has been entered, the parents will have to go back to court to request a modification.
To request a modification to a child custody order, a parent must submit an affidavit to the court that demonstrates “adequate cause” for a hearing. Keep in mind custody orders cannot be modified for a minor or trivial reason.
In most cases, a modification will not be granted if it has been less than a year since the last custody order was entered. If the judge does not believe there is adequate cause for a hearing on the matter, the modification request will be denied.
Do I Need a Lawyer?
The stakes are high when your children are involved. Whether you are going through a divorce, co-parenting with an ex you never married, or requesting a modification to an existing order, it is recommended you consult with an attorney before taking any legal action. The Phoenix child custody lawyers at Mushkatel, Robbins & Becker, PLLC, can help. Contact our offices in Sun City, Peoria, Scottsdale, Glendale or Surprise, Arizona, to schedule a consultation.
Zachary Mushkatel is an Arizona native who earned his undergraduate degree from the University of Arizona in 2001 and his law degree from the University of Minnesota Law School in 2004. After serving as a public defender, he entered into private practice and, ultimately, joined forces with Mathis Becker to form the law firm known today as Mushkatel, Robbins & Becker, PLLC. In addition to criminal law, Mushkatel practices civil litigation, with a focus on estate litigation and personal injury cases. He also serves on the Board of Directors for the Surprise Regional Chamber of Commerce and Sun Valley Lodge, and he is an executive officer and member of the Board of Directors for the West Maricopa County Bar Association.