Custody as it was formerly known is now referred to as Legal decision making. The issue of who makes legal decisions for the children is a sensitive area of family law and the court always treads carefully when considering the best interests of children. Whether establishing legal decision making (custody) or modifying child custody or even terminating the parental rights of a child, the standard of proof that the court always considers is whatever is in the child’s best interest.
Establishing or Modifying Legal Decision Making (Child Custody)
There are several ways to establish legal decision making (child custody) in Arizona. The most common cases for establishing child custody are through a dissolution of marriage or through a paternity action. Both a Petition for Dissolution of Marriage (Divorce) and Complaint for Paternity, for parents who are not married, may include a request to award one or both of the parents the ability to make legal decisions for the children such as health decisions, educational decisions, religious decisions and personal care decisions. Both parents are awarded parenting time not just one of the parents. The standard in Arizona now is that both parents should be awarded equal parenting time unless it is proven that it would be in the children’s best interests not to award equal parenting time.
What if the parents are married but not living together? If the parents have been separated for a long time, one of the parents may file a Petition to establish legal decision making (custody), parenting time and child support.
If the parents were never married and one of the parents applies for AHCCCS, food stamps etc., the State of Arizona, Department of Economic Security will ask for information on the other parent for the purposes of establishing paternity in order to obtain child support from the other parent. The State of Arizona is not interested in the legal decision making (custody) or parenting time issues that may have not been ordered between the parents and as such they will file the Complaint for Paternity and ask that the issues of custody and parenting time remain unadjudicated. The parents may then file a Petition to Establish Custody and Parenting Time separately.
MODIFYING LEGAL DECISION MAKING (CHILD CUSTODY)
Do you already have a child custody order in Arizona? If there was an order regarding the issue of child custody entered either in a Dissolution of Marriage or through a Paternity action and one of the parents wants to change legal custody, then there are several factors that are considered before even granting a hearing to modify child custody. Changing the legal custody of a child is considered to be a huge impact on the life of a child and therefore a hearing is not granted unless adequate cause has been shown to grant the hearing. According to the Arizona Rules of Family Law Procedure, the court considers the wishes of the child, wishes of the parents, whether or not the parents have attended the mandatory parent education class, the mental and physical health of all parties involved, whether the child has adjusted to his or her surroundings, whether joint custody is logistically possible, who is more likely to encourage frequent and meaningful contact and many other factors relating to the child’s best interests. The easiest way to modify child custody is when both parents agree to it. Absent an agreement, a child custody order is difficult to change once ordered.
Note: The above information is provided for your convenience. It is not intended to be legal advice of any kind. No attorney/client relationship is created by you reading this information. If you have legal questions, please contact an attorney.