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Arizona Child Custody
Child Custody in Arizona

According to 25-403 (A), "The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child."

When parents cannot agree on child custody issues, Arizona law requires a judge to determine custody based on the best interests of the children. The judge considers the interaction between the children and each parent and the way the parents relate to each other.

Like other states, Arizona parents decide between two types of child custody: legal and physical, and both may be either sole or joint custody. Legal custody grants a parent the power to make decisions concerning the children. If sharing legal custody, called joint custody, then parents must make the decisions concerning medical care and schooling. Physical custody means physical possession of the children. With sole custody, the children primarily live with one parent. Joint physical custody, however, requires children to spend time living with both parents.

Mandatory Parenting Class

Arizona courts require all divorcing parents with minor children to complete a mandatory parenting class before granting a divorce. This requirement is designed to help parents and children deal with the trauma of divorce and separation. Unless the court grants a waiver, both parents must complete this requirement. Rather than give up an afternoon or evening taking your course in a crowded classroom, you can fulfill this requirement conveniently online at a very reasonable cost. We recommend you take Children in Between Online" to fulfill your court requirement and for the benefit of your children.

Non-custodial Parental Rights

Arizona Revised Statutes Section 25-408 provides for parenting time for the non-custodial parent. When a parent doesn't have primary custody of the children, the parent is considered the non-custodial parent.

Best Interests Test

Arizona courts apply the "best interests" to decide custody. This means that the court considers all factors relevant to determining what is in the best interest of the children including, but not limited to:

  • the parent's desires
  • the child's desires
  • the relationship between the parents and the children
  • the child's adjustment to their home or school environment
  • the health of the child
  • the ability of one parent to allow the child more frequent contact with the other parent
  • whether or not a parent is the primary caregiver
  • the existence of coercion used by any parent and
  • the parents' following of Arizona laws for the education program regarding children and divorce.

Sole vs. Joint Custody

The awarding of custody is the right for one or both parents to make decisions about the child, his or her education, religious training, upbringing and similar choices. In Arizona, courts can grant custody with both parents (which is joint) or with one (which is sole). The court does not give any preference to one parent because of gender, and no preference for either joint or sole custody is presumed. In determining joint custody, courts consider any parental agreement (or lack of agreement) about custody decisions, any unreasonable disagreement made by a parent, the ability of the parents to cooperate, and the logical possibility of joint custody. All factors are judged under the best interest standard.

Preferential Treatment Towards Mothers

Child custody laws in Arizona are gender-natural. Arizona does not recognize any maternal "tender years" preference over young children. In practice, though, judges are inclined to award primary physical custody of young children to the mother, particularly if she has been the child's primary caregiver. There is no legal presumption favoring one parent over the other.

Joint Custody Preference

Arizona law expresses a preference for parents to share as equally as possible in the custody of a child in a divorce case. In Joint Custody Parenting Plans, parents must write a parenting plan and submit it to the court for consideration. The plan addresses legal and physical custody.

Title 25, Chapter 4, Article 1, A.R.S. Section 25-403.02 defines the essentials of the parenting plan, which includes each parent's rights and responsibilities in terms of personal care and decision making in the areas of education, healthcare and religion; a detailed schedule of the physical residence of the child throughout the year; prescribed courses of action when changes need to be made to the agreement or if the agreement is broken by one party; and a statement from both parties acknowledging that joint custody is not defined by equal parenting time. Absent a parenting plan, the court decides based on its own findings.

Third Party Custody

In some cases, a third party, or someone other than a child's biological parents, seeks custody of a child. This is called Non-parental Custody. Under Arizona law, a non-parent can start child custody proceedings in two ways: filing a verified petition or filing a petition along with an affidavit. The non-parent's petition must include facts pertaining to why he or she should receive custody. The state can deny the petition unless the non-parent, or petitioner, doesn't prove his or her claim. For example, the non-parent has to prove that it's detrimental for the children to remain with their legal parents.

Parental Conduct

In addition to finding a parent unfit because of substance abuse or abuse or neglect towards a child, the court considers the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child. The state of Arizona considers abandoning a child a punishable offense. A parent who abandons a child for at least six months faces approximately three months in county jail if convicted. In Arizona, abandonment includes a failure to maintain a significant relationship or regular contact and a failure to provide minimal effort to talk with or support the children. To prove abandonment, the state must prove that a parent's conduct demonstrated a purposeful intent to relinquish the parental duties and rights.

Parenting time is not granted to a non-custodial parent when the court determines that visitation would seriously harm a child's emotional, mental or physical health.

Visitation

Arizona law permits the court to determine visitation. In Arizona, a parenting plan is used to determine visitation rights. This plan includes each parent's rights and responsibilities, and the physical residence of the child. Holidays, vacations, weekends - all are defined in the parenting plan. Parents may submit their own parenting plans to the court, though the court is not bound by any agreement between the parties. The court considers any factors that affect the emotional, mental and physical health of the child.

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