|What Every Arizona Parent Should Know about Custody and Visitation Rights
Q: What is the difference between physical custody and legal custody?
A: Physical custody indicates where a child resides the majority of the time. For example, a joint custody order may designate one parent as the “primary physical custodian,” meaning that par-ent’s residence is the child’s main residence. Legal custody can be designated as “sole” or “joint” and refers to decision-making in three major areas: education, medicine and religion. Keep in mind that custody does not equal access nor does joint custody mean equal parenting time.
Q: What do the terms sole custody, joint custody and full custody mean?
A: A sole custodian, barring any specific court orders to the contrary, is entitled to make major decisions in the three areas mentioned above: educa-tion, medicine and religion without consulting the other parent. Joint custodians must make these decisions mutually and, normally, if disagreement occurs, a mediator can attempt to solve the issue prior to requesting the court’s interven-tion. The public commonly uses “full custody” to mean sole custody but Arizona courts use the latter.
Q: What can a non-custodial parent expect with regard to parenting time?
A: Parenting time, often called visitation, varies with the particular facts of each case. Thus, parents’ work schedules, care-giving history, parent/child preferences, school locations, safety and, of course, the court’s determination of the child’s best interests are some of the factors that influence the final schedule. At this time, the courts appear to be using equal time schedules more often. For more information on visitation schedules and copies of the Ari-zona Model Parenting Time Plans, please visit the Arizona Supreme Court’s web page at: http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf.
Q: What is the difference between visitation, parental access and parenting time?
A: The three terms mean essentially the same thing but reflect a change over time in the way the court views divided families. “Visitation,” although the preferred term in the past and still most widely used by the general public, has come to be viewed as subrogating the non-custodial parent to a lower status. To a lesser extent, “parental access” suffers from the same shortcoming as “visitation.” “Parenting time” is the more neutral term that can be applied equally to time spent with both the custodial and non-custodial parent.
Q: What role do psychologists and/or evaluators play in child-related issues?
A: When the parties to a custody / parenting time proceeding cannot reach an agreement on custody, primary custodian 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 psycholo- gists, while others are psychia-trists 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.
Q: If Arizona is a no-fault divorce state, does that mean that the court does not consider fault when it comes to custody and visitation? What does the court consider?
A: 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 custody, including significant domestic violence and drug offenses.
Other factors that may influence the Arizona court’s custody 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; who has traditionally been the child’s primary caregiver; and evidence of how well the parties work together on parenting issues; among others. Parents dealing with custody and access issues may wish to read Arizona Revised Statute §25-403 to assist in understanding the law in this area.
Q: What is the interplay between parenting time and child support?
A: First, the court considers these as two separate issues. In other words, whether the non-custodial 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 parent access 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.
Brochure #4 in the The Law Office of Carrie M. Wilcox “Arizona Family Law Series.” Please call 602-445-4690 for your free brochures on other topics, including:
#1 What You Should Know About Divorce in Arizona
#2 Paternity Questions
#3 Visitation and Custody Rights of Non-Parents in Arizona
#5 What Every Divorcing Spouse Should Know About Community Property in Arizona
Disclaimer: The Law Office of Carrie M. Wilcox and its principals, agents or representatives, make no guarantees or representations as to the accuracy or currency of any information herein contained. Providing this brochure does not establish an attorney-client relationship. To create such relationship, both the attorney and potential client must sign a written fee agreement. This information is meant only as general information, may not apply to your case specifically and is not meant to be relied upon for purposes of taking legal action. You should contact an attorney in person for further and specific information. Our family law attorneys are licensed in Arizona only.
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