Child custody may be awarded in an action for dissolution of marriage, legal separation, or paternity. The court, in determining the best interests of the child in a custody proceeding, is required by law to consider all relevant factors. Those factors include:
The wishes of the parents as to custody.
The wishes of the child as to the custodian.
The interaction and interrelationship of the child with his or her parents, siblings, and any other person who may significantly affect his or her best interest.
The child’s adjustment to home, school, and community.
The mental and physical health of all persons involved.
Which parent is more likely to allow the child frequent and meaningful contact with the other parent (not applicable if a parent is acting in good faith to protect a child from domestic violence or child abuse).
Whether one parent, both parents, or neither parent has provided primary care of the child.
The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
Whether a parent has complied with the provisions regarding domestic relations education.
Whether either parent was convicted of false reporting of child abuse or neglect.
Whether there has been domestic violence or child abuse.
In awarding child custody, the court may order sole custody or joint custody. Sole custody means that one parent has legal custody. Joint custody means that the parents share legal custody or physical custody, or both. It is the declared public policy of Arizona that absent evidence to the contrary, it is in a child’s best interest:
- to have substantial, frequent, meaningful and continuing parenting time with both parents, and
- to have both parents participate in decision-making about the child.
The law therefore favors joint custody over sole custody, absent evidence that joint custody is not in the child’s best interest. The court in determining custody does not prefer a parent as custodian because of that parent’s sex.
The court may issue an order for joint custody of a child if both parents agree and submit a written parenting plan and the court finds such an order is in the best interests of the child.
The court may order joint legal custody without ordering joint physical custody. Joint legal custody means that both parents share legal custody and neither parent’s rights are superior. Joint physical custody means that the physical residence of the child is shared by the parents in a manner that assures the child has substantially equal time and contact with both parents.
The court may issue an order for joint custody over the objections of one of the parents if the court believes that joint custody is in the child’s best interests. Joint custody will not be awarded if significant domestic violence exists, or if there has been a significant history of domestic violence.
Before an award is made granting joint custody, the parents must submit to the court a proposed parenting plan. The parenting plan must include at least the following elements:
Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care, and religious training.
A schedule of the physical residence of the child, including holidays and school vacations.
A procedure by which proposed changes, disputes, and alleged breaches may be mediated or resolved.
A procedure for periodic review of the plan’s terms by the parents.
A statement that the parties understand that joint custody does not necessarily mean equal parenting time.
A statement that each parent has read, understands, and will abide by the sex offender notification requirements.
If the parents are unable to agree on any element to be included in the parenting plan for joint custody, the court will determine that element. The court may determine other factors that are necessary to promote and protect the emotional and physical health of the child.
Access to Records
Generally, both parents are entitled to equal access to documents and other information concerning the child’s education and physical, mental, moral and emotional health including medical, school, police, court and other records. Unless otherwise provided by court order or law, on reasonable request either parent may obtain the records directly from the custodian of the records or from the other parent.
If a parent has been convicted of any drug offense within 12 months before the petition or request for custody is filed, there is a presumption that sole or joint custody by that parent is not in the child’s best interests.
The court will deem evidence of domestic violence as being contrary to the best interests of the child. The safety and well-being of the child and of the victim of domestic violence is of primary importance. In determining custody, the court will consider a perpetrator’s history of causing or threatening to cause physical harm to another person.
If a parent seeking custody has committed an act of domestic violence against the other parent, there will be a presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests. This presumption does not apply if both parents have committed an act of domestic violence.
If a parent has committed an act of domestic violence, that parent must prove to the court’s satisfaction that parenting time will not endanger the child or significantly impair the child’s emotional development. In such cases, the court may order restricted or supervised contact between the parent and child, for the child’s protection and well-being.
Sexual Offenders; Murders
Unless the court finds that there is no significant risk to the child, it will not grant sole or joint custody of a child or unsupervised parenting time to a parent who is a registered sex offender, or who has been convicted of first degree murder and the victim was the other parent of the child. A child’s parent or custodian must immediately notify the other parent or custodian if he knows that a convicted or registered sex offender or a person who has been convicted of a dangerous crime against children may have access to the child.
Relocation of Child
If both parents are entitled to custody or parenting time and they both reside in the state, at least 60-days’ advance written notice must be provided to the other parent before a parent may relocate a child outside the state or more than 100 miles within the state. The notice must be made by certified mail, return receipt requested, or pursuant to the rules of family law procedure. Within 30 days after notice is given, the other parent may petition the court to prevent the relocation of the child. The court will determine whether to allow the parent to relocate the child in accordance with the child’s best interests. The burden of proving what is in the child’s best interests is on the parent who is seeking to relocate the child. To the extent practicable, the court will make appropriate arrangements to ensure the continuation of a meaningful relationship between the child and both parents.
Modification of Custody Award
The court has the power to change the terms of any custody award. A parent may not, however, make a motion to modify a custody order earlier than one year after its date, unless there is reason to believe that the child’s present environment may seriously endanger the child’s physical, moral, or emotional health.
At any time after a joint custody order is entered, a parent may petition the court for modification of the order on the basis that domestic violence, spousal abuse or child abuse occurred since the entry of the joint custody order.
Six months after the entry of a joint custody order, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order.
In all cases, the court will determine the best interests of the child in deciding whether to modify the terms of a custody order.
The above article is an excerpt from Arizona Laws 101: A Handbook for Non-Lawyers, 2nd Edition (Fenestra Books, 2012), by Donald A. Loose, republished with the author’s permission.
Disclaimer: Laws change constantly. Specific legal advice should be obtained regarding any legal matter. The information contained on this website does not constitute legal advice and no attorney-client relationship is created.
Don likes to target shoot, scuba dive, and pilot airplanes. Most recently, he has been working on his golf handicap. Don enjoys writing, reading, and spending time with his wife, twin sons, and golden retriever, Lucy.