Legal Decision Making Authority and Parenting Time.

 

As of January 1, 2013, Arizona has done away with custody.  In its place Arizona has adopted “Legal Decision Making”. Legal decision making means the legal right and responsibility to make all non-emergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.

Joint vs. Sole Legal Decision Making Authority

There are two types of legal decision making, sole and joint.

A parent with Sole Legal Decision Making authority will make all legal decisions unilaterally.  While, Joint legal decision making means both parents share decision-making and neither parent’s rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.

It is important to know and understand that Arizona now leans in favor of joint legal decision making.  It is also important to understand that if you are seeking sole legal decision making authority that you must demonstrate to the court sufficient grounds to merit this request.  These grounds will be discussed in more detail below.

Parenting Time

In Arizona, parents are often confused about the differences between legal decision making authority and parenting time:

As described above Legal decision making authority is about decisions regarding school, religion and medical care for their children. Parenting time (formal known as visitation or access in Arizona) refers to where and with whom the child will live. Most of the time, children will split the time they spend living with one parent and the other, sometimes equally, sometimes unequally.

Sole Legal Decision Making:

In determining if sole legal decision making is appropriate in a case were the parties cannot agree the court looks at several factors:

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, the child’s  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 paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

7.         Whether one parent intentionally misled the court to cause an unnecessary delay, to increase  the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8.         Whether there has been domestic violence or child abuse in accordance with relevant statutes.

9.         The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

10.        Whether a parent has complied with and taken the required parent information program class.

11.        Whether either parent was convicted of an act of false reporting of child abuse or neglect.

Situations Where the Court Cannot Grant Joint Legal Decision Making

Also, the Court cannot award joint legal decision making authority if findings are made that one parent perpetrated significant domestic violence upon the other parent. §25-403.03 and §13-3601

In addition to domestic violence, there is a presumption in the State of Arizona that parents who have abused drugs or alcohol and/or have been convicted of certain drug offenses within the twelve months preceding commencement of a case, that it is not in the best interests of a child for the abusing or convicted parent to be awarded either joint or sole legal decision making authority. §25-403.04

Finally, Arizona law dictates that a parent who is a registered sex offender cannot be awarded joint legal decision making authority. §25-403.05 and §13-705(P)(1)

Since Arizona now leans in favor of joint legal decision making anyone desiring sole legal decision making authority, prior to requesting the same with the Court should meet with an experienced legal professional to discuss the merits of their case.

What role do psychologists and/or evaluators play in child-related issues?

When the parties to a legal decision making / parenting time proceeding cannot reach an agreement on legal decision making, primary residential parent or parenting time, an expert is sometimes needed to assist the court. There are a great many evaluators throughout Arizona and many appear on the Maricopa County Superior Court's list of approved evaluators. Many are psychologists, while others are psychiatrists or counselors. Evaluators can spend more time with the entire family than a judge and because of their education and experience, the court prefers the expert have direct contact with children of divorcing parents. Although some judges occasionally interview children, an evaluator is the preferred medium through which a child's wishes and observations come. Evaluators, in addition to meeting with children, also meet with parents, significant others and analyze the entire situation surrounding a child.

If Arizona is a no-fault divorce state, does that mean that the court does not consider fault when it comes to legal decision making and parenting time? What does the court consider?

No. The Arizona courts, when making decisions about children must apply the "best interests of the child" standard. Thus, a party's behavior during the marriage, preceding the marriage or following a divorce or legal separation can be relevant in determining a child's best interests. In fact, Arizona law requires that the court consider certain behaviors by parents when determining legal decision making, including significant domestic violence and drug offenses.

Other factors that may influence the Arizona court's legal decision making determination include the child's wishes; the interrelationship of the child with his/her parents, siblings and others; which parent is most likely to allow continuing contact with the other parent; and evidence of how well the parties work together on parenting issues; among others. Parents dealing with legal decision making and parenting time issues may wish to read Arizona Revised Statute §25-403 to assist in understanding the law in this area.

What is the relationship between parenting time and child support?

First, the court considers these as two separate issues. In other words, whether the paying parent stays current on his/her child support should not impact whether or not that parent receives parenting time with the child. Thus, denying a non-custodial parenting time with the child because of an existing child support arrearage is not justified in the eyes of the court. While the law provides for severe penalties for those who do not pay their child support, denying parenting time is not one of them.

Second, the Arizona Child Support Guidelines do provide a credit to the parent paying child support in proportion to the amount of parenting time actually provided / taken. In other words, a parent whom the court awards more parenting time will pay less child support than a parent who has less parenting time, all other factors being equal. Of course, there are quite a few other factors that affect child support, including both parties' incomes, reoccurring expenses for the child such as insurance and extra educational expenses, etc.