Custody in Arizona.

Decisions against where the child lives

Arizona splits authority from time rather than 'legal vs. physical custody.' 'Legal decision-making' is the right and responsibility to make all non-emergency legal decisions – education, health care, religious training, personal care (sec. 25-401(3)). 'Parenting time' is the schedule of access; during their own parenting time each parent feeds, houses and clothes the child and makes routine decisions (sec. 25-401(5)). Sec. 25-403.01(C) adds that a sole legal decision-maker cannot unilaterally change the court-ordered parenting time plan. Sec. 25-403.02(E) states flatly: 'Shared legal decision-making does not necessarily mean equal parenting time.'

What the judge must weigh

1. The past, present and potential future relationship between the parent and the child
2. The interaction and interrelationship of the child with the child's parent or parents, siblings, and any other person who may significantly affect the child's best interest
3. The child's adjustment to home, school and community
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time
5. The mental and physical health of all individuals involved
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent – this does not apply if the court finds a parent is acting in good faith to protect the child from witnessing or being a victim of domestic violence or child abuse
7. Whether one parent intentionally misled the court to cause unnecessary delay, increase the cost of litigation, or gain a legal decision-making or parenting time preference
8. Whether there has been domestic violence or child abuse under sec. 25-403.03
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement about legal decision-making or parenting time
10. Whether a parent has complied with chapter 3, article 5 of Title 25 (the parent education requirement)
11. Whether either parent was convicted of false reporting of child abuse or neglect under sec. 13-2907.02
12. Additional factors under sec. 25-403.01(B) for deciding sole vs. joint decision-making: whether the parents agree or do not agree to joint legal decision-making; whether a parent's lack of agreement is unreasonable or driven by something unrelated to the child; the parents' past, present and future ability to cooperate in decision-making; and whether joint legal decision-making is logistically possible

What the child wants

There is no magic age in Arizona. Sec. 25-403(A)(4) tells the judge to weigh 'the wishes of the child as to legal decision-making and parenting time' only 'if the child is of suitable age and maturity.' It is one factor among eleven, and the child does not decide. Sec. 25-405(A) lets the judge interview the child privately in chambers to find out what the child wants.

Where there has been violence or abuse

Ariz. Rev. Stat. sec. 25-403.03. Two separate rules. First, sec. 25-403.03(A): joint legal decision-making 'shall not be awarded' if the court finds significant domestic violence under sec. 13-3601, or finds by a preponderance of the evidence a significant history of domestic violence – that is a bar, not a presumption. Second, sec. 25-403.03(D): if a parent seeking sole or joint decision-making committed an act of domestic violence against the other parent, there is a rebuttable presumption that giving that parent sole or joint decision-making is contrary to the child's best interests; the presumption does not apply if both parents committed an act. Sec. 25-403.03(E) lists what rebuts it (completing a batterer's prevention program, substance-abuse counseling, a parenting class, no further acts). Sec. 25-403.03(F) puts the burden on the parent who committed violence to prove parenting time will not endanger the child, and lists conditions the court may impose. Sec. 25-403.03(G): the court shall not order joint counseling between a victim and the perpetrator.

The parenting plan

Yes, when the parents cannot agree. Sec. 25-403.02(A): 'If the child's parents cannot agree on a plan for legal decision-making or parenting time, each parent must submit a proposed parenting plan.' Sec. 25-403.02(C) lists eight things every plan must contain, including a designation of decision-making as joint or sole, a practical schedule covering holidays and school vacations, an exchange procedure (with a safe exchange location where sec. 25-403.10 applies), a dispute-resolution and relocation procedure, a communication procedure, and a signed statement that each parent has read and will follow the sec. 25-403.05(B) notification rules. Blank forms are at the Arizona Judicial Branch Self-Service Center: https://www.azcourts.gov/selfservicecenter/Forms

Mediation

Not mandatory statewide by statute. Every parenting plan must contain 'a procedure by which proposed changes, relocation…, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling' (sec. 25-403.02(C)(5)). Arizona's conciliation court is available on either party's petition before or after a case is filed (sec. 25-381.09), and sec. 25-803(E) makes conciliation court services available for disputed decision-making and parenting time in paternity cases. Individual superior courts add their own requirements, so check your county's local rules.

If the court appoints someone to look into it

Ariz. Rev. Stat. sec. 25-406. In contested legal decision-making and parenting time cases, and in other custody cases on a parent's or custodian's request, the court may order an investigation and report. Who pays: sec. 25-406(B) – 'If an investigation and report are ordered pursuant to this section or if the court appoints a family court advisor, the court shall allocate cost based on the financial circumstances of both parties.' The investigator, a court-appointed advisor and a court-appointed attorney for the child must have at least six hours of domestic-violence training and six hours of child-abuse training, plus four more hours every two years (sec. 25-406(C)). The report goes to counsel at least ten days before the hearing and the investigator can be cross-examined. Sec. 25-405(B) separately lets the judge seek written advice from professional personnel, who may also be examined as witnesses.

Changing the order

Ariz. Rev. Stat. sec. 25-411. You generally cannot move to modify a legal decision-making or parenting time decree until one year after it was entered – unless you file affidavits showing reason to believe 'the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.' Two shortcuts exist: at any time after a joint legal decision-making order, a parent may petition based on domestic violence, spousal abuse or child abuse occurring since the order; and six months after a joint order, a parent may petition based on the other parent's failure to comply with it. Sec. 25-411(J): parenting time may be modified whenever it serves the child's best interest, but the court cannot restrict parenting time without finding it would seriously endanger the child. Sec. 25-411(L) requires a detailed affidavit or verified petition, and the court must deny the motion unless the pleadings establish adequate cause for a hearing. Sec. 25-411(M) allows fees against a party whose modification action is vexatious or harassing.

If you were never married

Paternity comes first. 'Legal parent' under sec. 25-401(4) does not include a man whose paternity has not been established under sec. 25-812 or sec. 25-814. Sec. 25-814 lists the presumptions of paternity: marriage within the ten months before birth, genetic testing showing at least 95% probability, a birth certificate signed by both parents, or a notarized or witnessed acknowledgment signed by both. Any party to a paternity case (other than the State) may ask that legal decision-making and parenting time be decided in that same case (sec. 25-803(C)). The rule that surprises people is sec. 25-803(D): 'In any case in which paternity is established the parent with whom the child has resided for the greater part of the last six months shall have legal decision-making unless otherwise ordered by the court.' The attorney general or county attorney handling a support case will not litigate decision-making or parenting time for you (sec. 25-803(C)).