A look at Arizona custody-law amendments four years later

While a child’s best interests remain the foremost consideration in deciding custody matters, shared parenting has been elevated in importance.

In 2013, amendments to Arizona’s child custody laws took effect that favor equal or shared parenting, so long as it is in the child’s best interests.

New terminology

Arizona adopted custody terms different from traditional labels:

• Parenting time: Parenting time is a broad term encompassing all times during which a parent and child are together, called parental “access” to the child. Parenting time includes periods in which a parent has “physical custody,” traditionally meaning that the parent has the legal right and responsibility to provide the primary home for the child during that time. Parenting time also includes traditional “visitation,” which historically encompasses shorter times a child spends with the other parent, such as weeknights or weekends.
• Visitation: Visitation now means time with a child granted to someone other than a parent like a grandparent.
• Legal decision-making: Previously called legal custody, a parent with this right must make all “nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care.” This power can be held by one parent alone or both jointly.

Shared parenting time

The new custody law changed in significant ways what a judge must consider in determining a particular child’s best interests, veering away from traditional reasons to grant custody and toward a preference for equal parenting time between parents, regardless of gender or the roles the parents had played in the family.

Often, divorcing parents can negotiate an agreement in which they decide issues of parenting time and legal decision-making themselves. Otherwise, the judge in the divorce must make custody determinations based on the child’s best interests.

Each parent must file a proposed parenting plan that suggests how the court should decide physical and legal custody issues. The new law states that a judge may not favor either parent’s plan based on the parent or child’s gender.

In addition, so long as it is in the child’s best interests, the court is directed to order a parenting plan that grants joint legal decision-making and “maximizes their respective parenting time.” However, even if a parent is given no decision-making power, he or she is still “entitled to reasonable parent time … to ensure that the minor child has substantial, frequent, meaningful and continuing contact” with that parent, unless the judge believes that spending time with that parent would “endanger the child’s physical, mental, moral or emotional health.”

Changes to the relevant factors

The judge must consider all factors “relevant to the child’s physical and emotional well-being” – new language that defines the essence of a child’s best interests. While the judge shall weigh all relevant factors, he or she must consider specific factors listed in the statute. The amendments took some factors out of this list and added in new ones.

For example, a judge no longer must consider parental wishes about custody. Significantly, another factor removed from the list is whether one, both or neither parent has historically provided “primary care.” Of course, in the traditional family, this factor would have favored stay-at-home mothers.

(However, if either of these factors is relevant to the child’s best interests, the judge could still consider them.)

Instead, the court must consider the new factor “past, present and potential future relationship between the parent and the child,” along with other factors not removed from the list like the child’s adjustment to his or her present living arrangements and everyone’s physical and mental health, among others.

Practical application

In a January 2018 editorial in the Baltimore Post-Examiner, Dr. William Fabricius of Arizona State University describes a substantial study about the new custody law that will be published in the Journal of Divorce and Remarriage. He reports that stakeholders (judges, lawyers, court staff and mental health providers) agree that judges apply the law as a “de facto presumption for equal parenting time,” subject to adjustment if needed to meet the child’s best interests.