Child custody in Arizona

What the law tells the judge to look at

In the order the law lists them.

1. The past, present, and likely future relationship between each parent and the child.A.R.S. § 25-403(A)(1)
2. How the child gets along with each parent, brothers and sisters, and any other person who may strongly affect the child's best interest.A.R.S. § 25-403(A)(2)
3. How well the child is adjusted to home, school, and community.A.R.S. § 25-403(A)(3)
4. The child's wishes about legal decision-making and parenting time, if the child is old and mature enough.A.R.S. § 25-403(A)(4)
5. The mental and physical health of everyone involved.A.R.S. § 25-403(A)(5)
6. Which parent is more likely to let the child have frequent, meaningful, and continuing contact with the other parent. This does not count against a parent who is acting in good faith to protect the child from domestic violence or child abuse.A.R.S. § 25-403(A)(6)
7. Whether a parent misled the court on purpose to cause delay, raise the cost of the case, or get an advantage in legal decision-making or parenting time.A.R.S. § 25-403(A)(7)
8. Whether there has been domestic violence or child abuse.A.R.S. § 25-403(A)(8)
9. How much pressure or force a parent used to get the other parent to agree to a legal decision-making or parenting time plan.A.R.S. § 25-403(A)(9)
10. Whether each parent finished the required parent education program.A.R.S. § 25-403(A)(10)
11. Whether either parent was convicted of falsely reporting child abuse or neglect.A.R.S. § 25-403(A)(11)

Other things the judge considers

• To decide between joint and sole legal decision-making, the judge also looks at whether the parents agree, whether a parent's refusal to agree is unreasonable or not about the child, how well the parents can make decisions together, and whether joint decision-making is practical.A.R.S. § 25-403.01(B)
• If a parent abused drugs or alcohol, or was convicted of a drug offense or DUI, in the 12 months before the case was filed, the law presumes that sole or joint legal decision-making by that parent is not in the child's best interest. The parent can try to overcome this with proof, such as 6 months of clean random drug tests.A.R.S. § 25-403.04
• A registered sex offender, or a parent convicted of first-degree murder of the child's other parent, cannot get legal decision-making or unsupervised parenting time unless the judge finds no significant risk to the child and explains why in writing.A.R.S. § 25-403.05(A)
• In a contested case, the judge must make specific findings on the record about every relevant factor and explain why the decision is best for the child.A.R.S. § 25-403(B)

What the judge may not consider

The judge cannot prefer a parent's proposed parenting plan because of the parent's or the child's gender (A.R.S. § 25-403.02(B)).

Joint custody

No formal presumption, but the law leans toward shared parenting. State policy says that, unless there is evidence otherwise, a child does best with substantial, frequent, meaningful, and continuing time with both parents and with both parents taking part in decisions. Consistent with the child's best interest, the judge must adopt a plan in which both parents share legal decision-making and that gives each parent as much parenting time as possible. Shared decision-making does not have to mean equal time.

The child's wishes

The judge considers the child's wishes if the child is of suitable age and maturity. The law does not set an age. The judge may talk with the child in chambers (the judge's office).

Domestic violence

Domestic violence and child abuse are against a child's best interest, and the judge must put the safety of the child and the victim first. Domestic violence includes coercive control (a pattern of threats, isolation, stalking, control of money, and similar behavior). If the judge finds that a parent committed domestic violence, the law presumes that giving that parent legal decision-making or parenting time is against the child's best interest. The judge cannot make the victim prove the violence was severe or frequent, and cannot call it 'mutual' unless both parents acted alike. To get joint or sole legal decision-making or unsupervised time, that parent must overcome the presumption by clear and convincing evidence; for supervised time, by a preponderance of the evidence. A treatment certificate alone is not enough. The judge must order safety steps, such as safe exchange places, supervised visits, or no overnights, and must explain the findings in writing. A child's wish to see that parent more, or the fact that the child did not see the violence, does not help that parent overcome the presumption.

Who has custody before a court order

Arizona law does not say who has legal decision-making before a court order or before paternity is set. A father is not a 'legal parent' until paternity is established by a signed acknowledgment, genetic testing agreement, or court order. Once paternity is established, the parent the child has lived with for most of the last 6 months has legal decision-making unless a court orders otherwise.

Establishing paternity

How

Both parents can sign a notarized or witnessed Acknowledgment of Paternity, often at the hospital, and file it with the Clerk of the Superior Court, the Department of Economic Security (DES), or the Department of Health Services (Vital Records). It has the same effect as a court judgment. Either parent can cancel it in writing within 60 days of the last signature, or earlier if there is a court case about the child. You can also ask the Superior Court to decide paternity with a Petition for Court Order for Paternity and Legal Decision-Making (form DRP11F), or ask DES Child Support Services for help. If you file a custody, parenting time, or support case in the same county within 90 days after the clerk issues a paternity order, there is no filing fee.

Form

Acknowledgment of Paternity (voluntary acknowledgment under A.R.S. § 25-812)

Cancellation form

Written rescission filed with DES within 60 days (A.R.S. § 25-812(H)-(I))

Agency

Arizona Department of Economic Security, Division of Child Support Services (DCSS)
https://des.az.gov/services/child-and-family/child-support/establishing-paternity

Changing an order

You must wait at least 1 year after the last order to ask to change legal decision-making or parenting time, unless you file sworn statements showing the child's current home may seriously endanger the child's physical, mental, moral, or emotional health. You can ask to change a joint order at any time if there has been domestic violence, spousal abuse, or child abuse since the order, or after 6 months if the other parent is not following it. You must file a sworn petition with detailed facts. The judge first decides if there is a real, substantial, and unexpected change in circumstances, then decides what is in the child's best interest. Parenting time can be changed when it serves the child's best interest, but it can only be restricted if it would seriously endanger the child.

Waiting period: 1 year after the decree, with exceptions (danger to the child; domestic violence or child abuse after a joint order; 6 months for a joint order the other parent is not following)

Law: A.R.S. § 25-411(A), (C), (J), (L), (M)

If the other parent does not follow the order

If a parent refuses without good reason to follow a parenting time order, you can file a sworn petition. The court must hold a hearing or conference within 25 days after the petition is served. If the judge finds a violation, the judge must do at least one of these: find the parent in contempt, order make-up parenting time, order a parenting class or family counseling at that parent's cost, order a fine of up to $100 per violation, order mediation at that parent's cost, or make another order that helps the child. The parent who broke the order pays your court costs and attorney fees. A judge must also order fees against a parent who unreasonably denies or interferes with parenting time.

Law: A.R.S. §§ 25-408(J), 25-414

Grandparent visitation

Yes. A grandparent, great-grandparent, or someone who has acted as a parent (in loco parentis) can ask for visitation if it is in the child's best interest and one of these is true:

• A legal parent has died or has been missing at least 3 months
• The child was born to unmarried parents who are still not married to each other
• For grandparents and great-grandparents, the parents' divorce has been final for at least 3 months
• Or, for someone who acted as a parent, a divorce or legal separation is pending.

The petition must be sworn and give detailed facts, and all parents must be served. The judge must give special weight to the parents' opinion and looks at the past relationship, the reasons for asking and for objecting, how much time is asked for, and, if a parent has died, the value of keeping family ties. Grandparents file in the existing family case, or in a new case in the child's home-state county. Visitation ends if the child is adopted (except by a stepparent).

Custody by someone who is not a parent

A non-parent who has acted as a parent can ask for legal decision-making only if keeping the child with a legal parent would be significantly harmful to the child, no custody order was made in the last year (unless the child is in serious danger), and a legal parent has died, the parents are not married to each other, or a divorce or legal separation is pending. The law presumes a legal parent should have legal decision-making; the non-parent must prove otherwise by clear and convincing evidence.

Custody and visitation in the order

No. The list of what an Order of Protection can do does not include custody or parenting time; those are decided in a family case in Superior Court. Your children can be named as protected persons. If a family case is pending, the Order of Protection is handled by the Superior Court, and after a hearing a Superior Court judge can change the order only as needed to carry out parenting time orders. There is no fee.

Military parents

If the parent the child lives with most of the time is deployed far away, the judge cannot make a final change to the order until 90 days after deployment ends unless that parent agrees. Deployment alone is not a reason to change custody. The judge can make a temporary order during deployment and can let a deploying parent give some parenting time to a family member, such as a stepparent. Temporary orders must include a plan to return to the old schedule within 10 days after deployment ends.

Law: A.R.S. § 25-411(A)-(I)