FAQ - Legal Decision Making and Parenting Time (Custody)
Please describe legal decision making and parenting time (custody).
Legal decision making and parenting time is most known as child custody. As part of the divorce process, parents or the judge will decide if major decisions regarding the health, education, and religion of the children can be made by one or both parents; this is called legal decision making (LDM).Parenting time is how often the child or children spend their time with their divorced parents. In most cases, the court will require that the children spend time with each parent after the divorce. Parenting plans are often decided by the age of the child or children, school schedules, location of the parent, and parent situations.
How can I find out more information regarding legal decision making and parenting time?
The Arizona Supreme Court has more general information about legal decision making and parenting time in this brochure.
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Why is parenting time important?
A child deserves to have a good relationship with both parents. When parents do not live together, the child should have the opportunity to spend time with each parent.
What are the types of legal decision making in Arizona?
You may want to look at the definitions for legal decision making.
“Legal decision making” means the legal right and responsibility to make all non-emergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions. For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.
“Joint legal decision making” means both parents share legal decision making and neither of the rights of parents are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.
“Parenting time" means the schedule of time during which each parent has access to a child at specified times. Each parent during their scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the care of the child.
“Sole legal decision making” means one parent has the legal right and responsibility to make major decisions for a child.
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Definitions A.R.S. § 25-401
What is the procedure for getting a legal decision-making order?
The court may grant a legal decision-making order only in certain kinds of cases. Most often, legal decision making is determined when the parents are seeking a legal separation or divorce, or when parents are asking the court to change (or modify) a legal decision-making order made in an earlier separation or divorce case. Legal decision making also may be ordered when one parent starts a court case to decide paternity (or maternity) of a child. When a parent starts a court case for legal separation or dissolution of marriage and the parents cannot agree about legal decision making with regard to the child, it automatically becomes an issue for the court to decide. These court decisions are made in temporary order hearings and in final trial if the parents are unable to reach an agreement. After a decree of legal separation or divorce has been granted, the court still has authority to change (or modify) an earlier legal decision-making order.
What is meant by joint legal decision making?
This means that both parents share decision making and the rights or responsibilities of either parent are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.
What is meant by sole legal decision making?
This means that the court orders one parent to have the legal right and responsibility to make major decisions regarding the care or welfare of the child. Although both parents may discuss these matters, the parent designated by the court as the sole legal decision maker has authority to make final decisions in the event the parents do not agree. An order for sole legal decision making does not allow the parent designated as the sole legal decision maker to unilaterally change a court-ordered parenting time plan.
How does joint legal decision making work?
When the court awards joint legal decision making, each parent has the same rights and responsibilities to make decisions about the care and welfare of the child and the rights of neither parent are superior to the other parent. However, in the best interest of the child, the court may direct that certain decisions be made by only one parent, even when joint legal custody is awarded.
If parents have joint legal decision making, do both parents enjoy equal amounts of parenting time?
Not necessarily. The court may order joint legal decision making without ordering equal parenting time.
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What parenting time rights does a parent have?
State law entitles a parent to reasonable rights of parenting time to ensure that a child has frequent and continuing contact with the parent. However, parenting time can be limited or even denied, if the physical, mental, moral, or emotional health of the child would be seriously endangered by parenting time with a parent.
What amount of parenting time is right?
That depends on the age and stage of development of the child. For example, it may not be appropriate to have lengthy periods of parenting time with a newborn child, although more frequent shorter visits may be appropriate. Some counties (Coconino, Maricopa, Mohave, Pima, Pinal, and Yavapai) have established guidelines to help parents and the courts decide how much parenting time is important to the child. The Arizona Supreme Court has also published Planning for Parenting Time: Arizona's Guide for Parents Living Apart to assist parents in establishing age-related parenting time schedules. However, it is important to remember that guidelines do not apply to all family situations or to all children. If the parents cannot agree on a schedule the court decides parenting time on a case-by-case basis.
What is reasonable parenting time?
Reasonable parenting time means, time spent with a child that is average for most cases. Although the term has sometimes been used in parenting plans and even in court orders, parenting time decisions depend on the circumstances of each family, considering the age and development of the child. When parenting time is described only as reasonable, it is difficult to predict when or for how long parenting time periods should occur. When preparing an agreement or parenting plan, it is recommended that parents specifically decide when and for how long parenting time periods will be, including how to handle and allocate special occasions like vacations, school breaks, birthdays, and holidays so that both parents are considered. Guidelines available in some counties and the model parenting time plans of the Supreme Court may be useful to parents in making these decisions. The parenting time order should be written specifically enough to enable the court to enforce the order if the order is not followed and one parent files a request for enforcement.
Do I have to start a court case to have parenting time?
Parents are free to agree on the best parenting time plan for their child. If parents cannot agree, or if their agreement is not working, court action may be necessary. Remember, only the Superior Court can decide parenting time matters and issue an order that can be enforced if disagreements arise or if one parent does not honor the parenting time schedule.
How do I obtain a legal order for parenting time?
As with legal decision-making, the court may grant a parenting time order only in certain kinds of cases. Most frequently, parenting time is determined when the parents are seeking a legal separation or dissolution of marriage, or when parents are asking the court to change a parenting time decision that was made in an earlier separation or dissolution case. Parenting time may also be ordered when one parent starts a court case to decide paternity (or maternity) of a child or after a voluntary acknowledgment of paternity. When a parent starts a court case for legal separation or dissolution, legal decision-making and parenting time automatically become issues for the court to decide if the parents cannot agree. After a decree of legal separation or dissolution has been granted, the court still has authority to change (modify) an earlier parenting time order. Either parent may request in writing that the court decide what parenting time should be. The request is filed with the clerk of the superior court and a filing fee is charged.
Who decides legal decision making and parenting time?
Parents may agree between themselves about legal decision making and parenting time. However, if the parents cannot agree and if the Arizona legal system becomes involved (for example, when a parent asks the court for a dissolution), only the superior court judge may decide these issues.
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What does the judge consider when determining legal decision making and parenting time?
Arizona has statutes that have specific factors that the judge follows when deciding the best interests of the children. The court shall determine legal decision making, either originally (for the first time) or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:
• The past, present and potential future relationship between the parent and the child.
• The interaction and interrelationship of the child with the parent or parents, the siblings and any other person who may significantly affect the best interests of the child.
• The adjustment to home, school and community by the child.
• If the child is of suitable age and maturity, the wishes of the child as to legal decision making and parenting time.
• The mental and physical health of all individuals involved.
• Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
• Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision making or a parenting time preference to that parent.
• Whether there has been domestic violence or child abuse pursuant to A.R.S. § 25-403.03.
• The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision making or parenting time.
• Whether a parent has complied with chapter 3, article 5 of this title.
• Whether either parent was convicted of an act of false reporting of child abuse or neglect under A.R.S. § 13-2907.02.
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• Legal decision making; best interests of the child A.R.S. § 25-403
How does the court make its decision about parenting time?
If there is a dispute about parenting time, the court sometimes refers the parents to court mediation services. This process gives the parents an opportunity to reach an agreement regarding parenting time and related issues. However, if the parents are unable to agree on parenting time, the court must decide for them. Sometimes the court seeks professional advice to evaluate the family situation or offer an opinion about parenting time. When making its decision, the court will consider many factors, for example, the age and health of the child, the time each parent has available from work or other obligations, the distance between the' homes, the school schedule, and the suitability of living conditions in each home.
What if the parents agree how legal decision making should be decided?
Usually it is best if parents can agree on decisions about raising children after a legal separation or dissolution of marriage (divorce). The court usually accepts the mutual decision of the parents. However, the decision of the court about legal decision making must be made in the best interests of the child. After review of the terms of the agreement, the duty imposed on the court by law may require that the court not accept the agreement of the parents.
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What if the parents want to have joint legal decision making?
If the parents request joint legal decision making, they must submit to the court a written parenting plan indicating how they will cooperate to raise and care for the child. The court may order joint legal decision making without ordering equal parenting time. The court may order joint legal decision making even if one parent objects, but the decision of the court must be made in the best interests of the child.
If we agree on joint legal decision making what paperwork do we need to complete?
You will need a parenting plan, signed by both parents that includes:• A designation of the legal decision making as joint or sole as defined in A.R.S. § 25-401.• The rights and responsibilities of each parent for the personal care of the child and for decisions in areas such as education, health care and religious training.• A practical schedule of parenting time for the child, including holidays and school vacations.• A procedure for the exchanges of the child, including location and responsibility for transportation.• A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.• A procedure for periodic review of the terms of the plan by the parents.• A procedure for communicating with each other about the child, including methods and frequency.• A statement that each party has read, understands and will abide by the notification requirements of A.R.S. § 25-403.05, subsection B.
Resources:
Planning for Parenting Time: Arizona's Guide for Parents Living Apart
Things to Know About Legal Decision-Making and Parenting Time
Sexual offenders; murderers; legal decision making and parenting time A.R.S. § 25-403.05, subsection B
When do legal decision making and parenting time issues arise?
Most often, disputes about legal decision making and parenting time arise when married parents ask the court for a dissolution of the marriage (divorce) or a legal separation. However, legal decision making issues may also arise between parents who have never been married or who no longer live together. Legal decision making issues may also arise after the dissolution of marriage is final. In these situations, parents sometimes disagree about who makes decisions affecting the welfare of the child, where the child resides, or how much parenting time a parent will have with the child.
When legal decision making is decided, how does a parent obtain child support?
The law provides that when the court grants a legal decision making order, it also must decide what amount of child support should be paid, by each parent, under the Arizona Child Support Guidelines. Joint legal decision making does not mean that either parent is no longer responsible to provide for the support of the child.
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What is supervised parenting time?
Sometimes, to prevent harm to the health or emotional development of a child, it is necessary for the court to order that a social service agency or a mental health professional be involved with a family to be sure parenting time (and even legal decision-making) orders are followed. In this situation, the court may order the agency or another person to supervise or oversee the parenting time periods. In some cases, the exchange of the child is supervised by a third person to diminish the conflict between the parents to which the child would be exposed without supervised exchanges.
What if the parents agree how legal decision making should be decided?
Usually it is best if parents can agree on decisions about raising children after a legal separation or dissolution of marriage (divorce). The court usually accepts the mutual decision of the parents. However, the decision of the court about legal decision making must be made in the best interests of the child. After review of the terms of the agreement, the duty imposed on the court by law may require that the court not accept the agreement of the parents.
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What if the parents want to have joint legal decision making?
If the parents request joint legal decision making, they must submit to the court a written parenting plan indicating how they will cooperate to raise and care for the child. The court may order joint legal decision making without ordering equal parenting time. The court may order joint legal decision making even if one parent objects, but the decision of the court must be made in the best interests of the child.
If we agree on joint legal decision making what paperwork do we need to complete?
You will need a parenting plan, signed by both parents that includes:
• A designation of the legal decision making as joint or sole as defined in A.R.S. § 25-401.
• The rights and responsibilities of each parent for the personal care of the child and for decisions in areas such as education, health care and religious training.
• A practical schedule of parenting time for the child, including holidays and school vacations.
• A procedure for the exchanges of the child, including location and responsibility for transportation.
• A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.
• A procedure for periodic review of the terms of the plan by the parents.
• A procedure for communicating with each other about the child, including methods and frequency.
• A statement that each party has read, understands and will abide by the notification requirements of A.R.S. § 25-403.05, subsection B.
Resources:
Planning for Parenting Time: Arizona's Guide for Parents Living Apart
Things to Know About Legal Decision-Making and Parenting Time
Sexual offenders; murderers; legal decision making and parenting time A.R.S. § 25-403.05, subsection B
When do legal decision making and parenting time issues arise?
Most often, disputes about legal decision making and parenting time arise when married parents ask the court for a dissolution of the marriage (divorce) or a legal separation. However, legal decision making issues may also arise between parents who have never been married or who no longer live together. Legal decision making issues may also arise after the dissolution of marriage is final. In these situations, parents sometimes disagree about who makes decisions affecting the welfare of the child, where the child resides, or how much parenting time a parent will have with the child.
When legal decision making is decided, how does a parent obtain child support?
The law provides that when the court grants a legal decision making order, it also must decide what amount of child support should be paid, by each parent, under the Arizona Child Support Guidelines. Joint legal decision making does not mean that either parent is no longer responsible to provide for the support of the child.
Resources:
What is supervised parenting time?
Sometimes, to prevent harm to the health or emotional development of a child, it is necessary for the court to order that a social service agency or a mental health professional be involved with a family to be sure parenting time (and even legal decision-making) orders are followed. In this situation, the court may order the agency or another person to supervise or oversee the parenting time periods. In some cases, the exchange of the child is supervised by a third person to diminish the conflict between the parents to which the child would be exposed without supervised exchanges.
How can a parent obtain school, medical, and other records of their child after dissolution of marriage (divorce)?
No matter which form of legal decision making is ordered, each parent is entitled to have equal access to prescription medication, documents and other information about the child unless access would endanger seriously the physical, mental, moral or emotional health of the child or parent.
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How can a legal decision making order of the court be changed (or modified)?
Either parent may request in writing that the court modify a legal decision making order. To change an existing order it must be shown that the best interests of the child are not currently being served. The request is filed with the Clerk of the Superior Court and a fee for filing is charged. However, there are limitations on requesting a modification. For example, a request may not be filed for one year from the date of the earlier order, unless there are special circumstances seriously endangering the physical, mental, emotional or moral health of the child. If joint legal decision making has been ordered, a modification may be requested at any time if there is evidence that domestic violence, spousal abuse or child abuse has occurred since the date the last order was granted. However, a parent must wait six months before seeking a modification if the reason for the request is that one parent has failed to obey provisions of the order of the court in a joint legal decision making situation.
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Can a person other than a parent have legal decision making?
Yes. The law provides that a person who stands in loco parentis to a child may ask the court for legal decision making or visitation. To be in loco parentis a person must have been treated as a parent by the child and have formed a meaningful parental relationship with the child for a substantial period of time. There are other requirements that must be met before a request may be made to the court. For the child, one of the parents must be deceased, the legal parents must be unmarried, or a court case for divorce or legal separation between the legal parents is pending.
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How does the court make its decision regarding legal decision making?
If there is a dispute about legal decision making, the court sometimes refers the parents to mediation services. This process gives the parents an opportunity to reach an agreement regarding legal decision making and related issues. However, if the parents are unable to come to an agreement, the court will decide for them. Sometimes the court seeks professional advice from outside experts who evaluate the family situation or offer an opinion about legal decision making. In some situations, the court also may order an investigation by a social service or other agency. In every case, the court must decide legal decision making based on a determination of the best interests of the child.
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I want to see my child more than the court order allows. How do I get more time with my child?
Your court might have a do-it-yourself packet to change parenting time. If not, many courts accept the packet of Maricopa County. Modification of parenting time may involve complicated issues and you may want to seek the help of an attorney.
Resources:
Modification of legal decision making or parenting time A.R.S. § 25-411
Things to Know About Legal Decision-Making and Parenting Time
Planning for Parenting Time: Arizona's Guide for Parents Living Apart
The other parent of my child is not following our custody decree. How do I make the other parent comply?
To enforce the custody (legal decision making and parenting time) decree, you may file a petition for enforcement, or you may start a contempt proceeding with an order to show cause or order to appear, depending on the situation. The court might have a do-it-yourself packet to enforce the decree that includes instructions and forms. If not, ask if the court accepts the Maricopa County forms. Some courts offer programs, such as counseling, or require additional steps, like mediation.
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I am supposed to pick up my kids this weekend, but the other parent says I will not be allowed to have them. Can the court make the other parent give me the kids?
The court cannot enforce an order unless the other person has actually disobeyed it. If the other parent denies your parenting time, you can ask the court to enforce the parenting time order. Your court might have a do-it-yourself packet for enforcement that includes forms and instructions. If not, many courts accept the packet of Maricopa County. Some courts offer special programs, such as counseling, or require additional steps, such as mediation.
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My child does not want to return to the home of the other parent at the end of my parenting time. Does my child have to go back?
Everyone must follow the court order until the judge changes it. Your court might have a do-it-yourself packet to change parenting time. If not, many courts accept the packet of Maricopa County. These packets explain the steps and include forms. Some courts offer special programs, such as counseling, or require additional steps, such as mediation. If someone is in danger, you can call law enforcement.
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How do I move out of state with my child (the other parent is staying here)?
If your parenting time order says you cannot move, you can ask the court to change that order to let you move. Your court might have a do-it-yourself packet to change parenting time that includes forms and instructions. If not, many courts accept the packet of Maricopa County. Some courts offer special programs, such as counseling, or require additional steps, such as mediation.
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What if my job requires an immediate transfer in less than 60 days?
A parent who is required to relocate in less than 60 days and is a parent with sole or joint legal decision making and primary residence of a child may temporarily move with the child after written notice has been given to the other parent. The move will be permitted on a temporary basis until a final agreement or order is formed.
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How can I get my children back from DCS?
If the Department of Child Safety (DCS) has removed your child from your home, you will be served with a Notice of Hearing. A court hearing will be set within 7 days. Any requests to the court must be made in writing. The local court can provide forms for dependency petitions and service, requests for review of temporary custody (only in dependency) and requests for appointment of an attorney or court interpreter. Other forms are available at local court websites and self-service centers.
If the father is on the birth certificate, does he still need to petition the court for paternity orders as well as parenting time and legal decision making?
Is his paternity being challenged? If not, then probably not. Even if paternity has been legally established and the father is on the birth certificate, the father has no legal right to parenting time or legal decision making until the court orders parenting time or legal decision making. Your county superior court may have more information or forms on this particular circumstance.
Resources:
Maricopa County forms and instructions
Presumption of paternity A.R.S. § 25-814Paternity FAQ
Will I get to talk to the judge about my family court emergency?
That is up to the judicial officer on a case-by-case basis. Contact the court to discuss your specific situation.
How can I get my parental rights restored?
Restoration of parental rights is a complex matter and you may wish to contact an attorney. To see if you qualify for free or reduced legal services visit AZLawHelp.
How do I amend a motion?
To make changes to a motion that is already filed with the court you will need to file an additional document called an amendment that contains the changes. This document must follow the Arizona Rules of Family Law Procedure and will need to be given to the court as well as served to the others involved in the case.
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How can I serve someone when I cannot find them?
Usually, if you cannot find the person, you can serve them by publishing a notice in a newspaper, called service by publication. You can read about the requirements and steps in the “Service of Process” section of the Arizona Rules of Family Law Procedure. Your court might have forms and instructions for serving by publication.
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