Dealing with child custody situations can be daunting for many parents in Arizona.
Most people do not know family law or how a case progresses through the court. Arizona also uses terms such as legal decision-making and parenting time to encompass what most people refer to as “custody,” which can make the process even more difficult on parents navigating the system on their own.
But we’re here to help. In this guide, we discuss some of the crucial aspects of Arizona’s child custody laws to help make the process as straightforward as possible.
Here you will find information regarding Arizona child custody laws, including whether the state favors one parent over the other, legal decision-making, parenting time, child support, how to establish or modify a legal decision-making/parenting time order, and everything related to custody issues.
Arizona Child Custody Laws
Child custody laws in Arizona vary a bit from what you may have experienced in other states or heard in the media. Firstly, Arizona does not use the term “custody” as other states do or as the term is commonly used.
Where other states might award someone legal custody and/or physical custody, in Arizona we use the terms legal decision-making and parenting time.
Arizona also has stated, as public policy and without evidence otherwise, 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. See A.R.S. §25-103.
Arizona is geared towards, where appropriate, having parents act as cooperative co-parents for the best interests of the child.
Arizona takes this approach a step further requiring parents going through a divorce or legal decision-making/parenting time action, to complete the Parent Information Program.
The course was implemented to educate parents on what children commonly experience during these actions, better ways parents can address these experiences with the children, and better ways to co-parent.
Despite Arizona favoring co-parenting, people should have formal orders regarding paternity, legal decision-making, and parenting time in place.
While people do have certain rights with regards to their children, those rights may be difficult to enforce without an appropriate establishment of paternity and an order regarding legal decision-making and parenting time, what many people refer to as their “custody agreement” or “custody orders.”
For example, if one parent is denying access to the child or not including the other parent in legal decision-making topics, the parent being denied access may have limited remedies available to them if formal orders are not in place.
Furthermore, without formal court orders, there is no order regarding child support. Which can bring about a whole host of problems for both the person paying child support and the person collecting child support, e.g., how much are they supposed to be paying, what do you do if they are not paying, are you getting credit for the payments you are making, and are you opening yourself up for a large retroactive support order?
To avoid these and other potential problems, it is important that formal orders are in place and payments are being processed in compliance with those orders.
Establishing Child Custody
Paternity in Arizona is usually established by either the child being born during a marriage or one parent petitioning the court to establish paternity. When a parent petitions the court to establish paternity, they essentially provide proof of paternity by either submitting a birth certificate or other voluntary acknowledgment of paternity or they request a DNA test.
Most often, in our practice, parties acknowledge paternity and a DNA test is not often needed.
When petitioning the court to establish paternity, Arizona must be the home state of the child (unless certain exceptions are met) and the parent can meet the 90-day jurisdiction requirement (again unless certain exceptions are met).
After filing the petition, the Petitioner must then serve it and other documents onto the Respondent. The Respondent then has time to respond to the petition. If the Respondent fails to respond timely to the petition, they risk having a default order entered against them.
If other motions or orders accompanied service of the petition and the Respondent fails to respond to or appear, they may also risk other sanctions in addition to a default order being entered against them.
Once service is complete, there is then a disclosure and discovery phase where parties exchange the information needed to resolve the case.
There are rules regarding both disclosure and discovery and violation of those rules could result in various sanctions. We recommend you consult with an experienced family law attorney to avoid violation of the rules.
If you are being represented by an attorney, they should be tracking the deadlines for you.
Keep in mind, the attorney will likely be asking you to compile documents to comply with the rules, so do not leave that until the last minute.
Once disclosure and discovery are complete, you have an opportunity to resolve the matter without the court making the final ruling through some form of alternative dispute resolution.
This can take many forms such as an exchange of settlement letters and attending a form of mediation.
If you are unable to come to an agreement either on your own or through some form of mediation, you will then have to go to a final trial and the court will enter its ruling.
Arizona Custody and Divorce
When a petition for dissolution (divorce) is filed in Arizona, and there are children common to the parties, Arizona courts automatically include parenting time and legal decision-making as some of the issues that need to be addressed in a final resolution.
However, unless an agreement is reached or the court orders otherwise—on a temporary basis—you and the other parent have equal rights until a final decision is reached.
If you and your spouse are unable to work out a temporary parenting time schedule, or you have concerns with your spouse exercising parenting time unsupervised, you may need to request the court to enter a temporary parenting time order.
We encourage you to consult with an experienced family law attorney regarding the possible need for temporary orders.
Like an Establishment, a Divorce proceeding will have an initial filing phase and then a disclosure/discovery phase, both of which prepare you to attempt to reach a resolution.
During a dissolution, when children are involved, you will also need to resolve issues like parenting time, legal decision-making, holiday parenting time, child support, and other financial issues related to the children.
You can reach a resolution between yourselves or with the assistance of a mediator. If you cannot reach a resolution, you will end up going to a final trial and the court will enter a ruling after reviewing the evidence presented.
Child Custody to Unmarried Parents in Arizona
If the parents are unmarried, in Arizona, in order to have a court-ordered parenting plan you will need to petition to establish one.
This process is the same as discussed above in Establishing Child Custody.
This is particularly important for fathers. Unless paternity has been established, fathers have essentially no rights to their children and no custody of the child. That is why it is especially important for fathers to establish paternity early as well as obtain parenting time, legal decision-making, and child support orders.
Of course, this does not mean you have to go to a trial. You can reach agreements between yourselves and prepare the final documents for the court to adopt as a final order.
Even if you are proceeding through the case without representation, we recommend that you at least have a consultation with an attorney who is familiar with child custody in Arizona regarding what you are considering proposing as a settlement to the other parent.
First and foremost, you want to make sure you know your rights and you are not proposing something less than you are entitled to. Secondly, you do not want to bind yourself to an agreement that you may not be able to get out of.
Additionally, you want to make sure you address all of the common issues parents encounter within your agreement.
As experienced family law lawyers, we know the issues people commonly run into—or forget to address altogether—and how to craft language to help avoid those issues.
Father’s Rights In Arizona
In many ways, Father’s Rights have come a long way from what is commonly believed. As an example, Arizona does not show preference to either parent due to their gender.
Arizona family law is geared towards both parents having equal rights to the children once paternity is established as discussed above.
The court opts for Arizona parents to exercise what is commonly referred to as “equal custody,” if it’s in the best interests of the child.
The court actually prefers that parents work together and create a workable parenting time schedule that is in the best interests of the child.
However, as discussed above, if you are a father who is not married to the mother of your child, you have essentially no rights until you establish paternity. That’s why establishing paternity is extremely important.
Types of Child Custody in Arizona
Arizona uses terms like legal decision-making and parenting time that encompass what most people refer to as “child custody.”
Legal Decision-Making relates to how nonemergency child custody decisions about religion, education, medical and personal care issues will be made. In other jurisdictions, this is known as legal custody.
Parenting Time simply refers to what parenting time schedule the parents will be exercising, or who has the child at specific times. During a parent’s parenting time, they are responsible for providing food, clothing, and shelter for the child.
They may also make routine decisions about the child’s care. See Arizona Revised Statutes §25-401.
As Arizona does not use the term custody in this context any longer, there are not really “types of child custody in Arizona.” There are, however, different designations of legal decision-making and different parenting plans parents can exercise.
It is important to understand that, by themselves, various designations of legal decision-making do not alter a parenting time schedule. It is possible for one parent to have sole legal decision-making with both parents exercising an equal parenting time schedule.
Sole Legal Decision-Making
Under this designation, the parent who is awarded sole legal decision-making has the legal right and responsibility to make the major decisions for the child.
This does not, however, mean that the other parent is completely cut out of the loop.
Unless a court has ordered otherwise, the parent with the sole legal decision-making designation should be keeping the other parent informed as to what decisions are to be made and ultimately what decision was made.
Joint Legal Decision-Making
Under joint legal custody, both parents share joint legal decision-making authority and neither parent holds more authority than the other.
Typically, when a nonemergency decision needs to be made, the joint custody parents discuss it and then agree on a solution.
If they are unable to agree on a solution, their parenting plan may have them pursue mediation before taking the issue up with the court.
Joint Legal Decision-Making with Final Say
Under this designation, both parents discuss the decision to be made as with normal joint legal decision-making. If they are unable to reach an agreement, then the parent with the final say decision-making authority can make the final decision.
Parenting Time is known as, or similar to, “physical custody” in other jurisdictions.
This is the schedule or time exercised with the children. A parent should be able to easily tell their parenting time by looking at their parenting plan and reviewing their parenting time schedule.
When there is a legal separation of the parents, the child’s adjustment can be difficult, especially if the child is used to spending time with both parents, and they are now unable to do so.
That is why Arizona family courts support both parents spending equal parenting time with the child if it’s in the child’s best interest.
The court enforces this through parenting time schedules. A parenting schedule outlines when each parent will have physical custody of their child.
Arizona law allows parents to have very flexible parenting plans, of the utmost concern is that the plan is in the best interests of the child.
This allows parents to craft and reach agreements on parenting schedules that work for both of them, taking into account the best interests of the child and the parents’ work schedules.
However, there are a few parenting schedules that courts tend to order more often than others when the parties are unable to reach an agreement on their own.
If you have an uncommon plan that you believe is in the best interests of the children, we recommend that you consult with an experienced family law attorney.
When you have “joint physical custody” or parenting time with your child, you are responsible for taking care of them. You need to take care of their physical health as well as their mental well-being. You are also responsible for providing them with clothing, food, shelter, and anything else they may need while they are in your care.
Overall, do your best to make your child’s adjustment as seamless as possible.
Getting Sole Custody in Arizona
Of course, we must first determine what the parent is actually seeking since Arizona does not use the term “custody” in that context.
For many, when they use the term “sole custody” they mean both sole legal decision-making authority and some form of unequal—and/or supervised—parenting time schedule.
Sometimes, what the parent is seeking is best answered with why they are seeking “sole custody.”
After explaining why you are seeking “sole custody” to an experienced family law attorney, they will be able to guide you towards what would solve the problem you are experiencing.
As mentioned before, Arizona is geared towards both parents exercising joint legal decision-making and equal parenting unless evidence is presented that those options are not in the child’s best interests.
Taking a parent’s rights away is not something Arizona courts or superior courts take lightly. So, there are some laws in place to protect each parent.
Reasons to Petition for Sole Custody
Of course, first, you must decide if you mean sole legal decision-making and/or an unequal/supervised parenting time schedule.
The reasons for either one—or both—are often very similar as they both revolve around the best interest of the child but they are not always dependent on one another.
This is a very fact-specific topic and you should consult with an experienced family law attorney.
One fact could make all the difference in whether you pursue this course and/or if emergency action is needed.
Some facts that would be important are: the well being of the child; if the child is not being cared for; if the other parent suffers from substance abuse or mental health issue; an act of domestic violence or child abuse; if the child’s medical needs are not being met; if the other parent is unreasonably obstructing legal decision-making issues; and many other potential problems.
Parental rights are difficult to terminate because courts usually do not feel that this is in the best interest of a child. So, if you think you may need to pursue “sole custody” we recommend you meet with one of our experienced family law attorneys and divorce attorneys to discuss your situation.
Child Support in Arizona
When an order regarding legal decision-making and parenting time is entered, a child support order will likely be entered as well. Arizona will typically follow the Arizona Child Support Guidelines unless it is appropriate not to.
As a quick overview, to determine an award of child support, you will need to know information like both parties income, the cost of health/dental/and vision insurance paid by the parent for the child, the parenting time schedule, childcare costs (if applicable), other child credits (if applicable), and spousal maintenance (if applicable).
There may be other information you need to know to get an accurate child support calculation. Child support can be both straightforward and complicated depending on the facts of the case.
We encourage you to meet with an experienced family law lawyer to discuss child support and make sure that you are taking into account everything you need to be.
Once all of the figures and credits are known, you can then do the child support calculation.
The handwritten formula used to calculate the child support award can be fairly complicated, luckily Arizona makes a child support calculator available to the public to help determine what an award of child support might be.
Of course, the amount will vary with the figures provided to the calculator, so it is important to meet with an experienced family law attorney to discuss child support.
Child Custody Modification in Arizona
If there is not an agreement between the parties, modifications can involve spending money and time in court, but there may be numerous reasons to modify your existing parenting plan or child support order.
Reasons to Modify a Child Custody Agreement
When you petition the family court to modify an order regarding parenting time and/or legal decision-making, you must show a material change in circumstances has occurred since the last order was entered and that change in circumstances is affecting the best interests of the child.
The reasons for modification should be compelling and show that the change in circumstances requires a modification for the child’s best interests if you are requesting a modification in parenting time or legal decision-making.
For example, one parent may be moving out of state and the parenting schedule as written cannot be exercised. A change in circumstances is also required for the modification of a child support order.
If you petition the court for modification and you do not show the required change in circumstances, you may risk the case being dismissed.
If you are considering petitioning the court for a modification, meet with one of our experienced family law lawyers to help with legal advice and set your case up correctly. And remember that the attorney-client relationship protects any conversations with an attorney.
Custody cases can be difficult for both the parents and the children, that’s why it is important to get your case started off right, have clear goals, and a clear understanding of why you need to accomplish your goal.
When parents are able to reach agreements that are in the best interest of their children without the court making the final ruling, it saves stress on both the parents and the children.
But, make sure that the agreement is enforceable under the law to avoid potentially serious problems in the future. An experienced Scottsdale family law attorney from our trusted law firm can help you navigate the court system.