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Say Goodbye to Custody

Custody is now a relic of the past. The Arizona legislature has spoken, and the term "Custody" has been banished from our statutes. Beginning on January 1, 2013 parents coming before our courts will not be awarded sole custody, or joint custody . . . or any kind of custody. Custody is dead and buried. It has been replaced by the terms: " Legal Decision-Making " and " Parenting Time ." From now on, the Arizona courts will either enter an order awarding joint legal decision-making to both parents; or they will give one parent the right to make decisions regarding the children. The court could also split the decision-making rights and responsibilities between the parents (for example, the mother might be given the right to make medical decisions while the father has the right to make educational decisions).

Some experts view this new arrangement as an earth-shaking philosophical shift that will lead to a significant change in the way the courts decide family law cases. Other experts take the position that the wording of the statutes is merely a matter of semantics, and that things will not change much at all. Only time will tell. Over the next year, as the law unfolds, I will keep you apprised of how the courts are interpreting the newly revised statutes.

For several years now, there has been a trend in this and many other states to award joint custody (rather than sole custody) in the typical family law case; and, today, court orders for equal parenting time and decision-making have become commonplace. This represents a real departure from the past, when the vast majority of cases ended up with the children living primarily with one parent. The recent changes to Arizona family law seem to reflect an extension of this trend. While the statute does not contain a specific "presumption" of equal time and decision-making, at least one judge who has worked on the new law believes that joint decision-making and equal parenting time will now be the "starting point" for judges in determining family law disputes.

This new philosophy is revealed in the language added to A.R.S. §25-403.02. Section B of the statute states: "Consistent with the child's best interests in section 25-403 and sections 25-403.03, 25-403.04, and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. The court shall not prefer a parent's proposed plan because of the parent's or child's gender." (Emphasis added.)

A.R.S. §25-403 contains the factors that the Court will use in deciding what type of parenting arrangement is in the best interests of a child. In the past, the court considered, as a factor, " whether one parent, both parents or neither parent has provided primary care of the child." However, that factor has been removed from the new statute. Instead, the court will now consider " the past, present and potential future relationship between the parent and the child." Some experts are disturbed by this change. They argue that a parent's track-record of providing primary care is important evidence that should be considered by the court in determining the type of parenting arrangement that would be in a child's best interests. Other experts disagree and point out that after the divorce, both the father and the mother will probably have to work full-time, and each of them will be required to "step-up" and become single parents. Therefore, in making its decision, the court should consider not only the past and present, but also the anticipated future relationship between the parents and the children. They argue that because a parent was not the primary caregiver in the past does not mean that he/she is incapable of nurturing and providing excellent care of the children in the future. This issue will certainly be a hotly contested one in family law litigation during the coming year.

Another new factor for the court to consider in applying A.R.S. §25-403 is contained in Section 7. This section states that, in deciding which type of parenting arrangement is in the children's best interests, the judge shall consider "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." The apparent purpose of the new provision is to place both parents on notice that if either one of them makes a false or improper allegation, or attempts to expand or delay the litigation, or acts in an unreasonable manner, it could be a basis for the court to take legal decision-making and/or parenting time away from that parent. (To put it in terms of the old statute, if the judge believes you have acted unreasonably during the litigation, it could result in you losing custody of your children.)

Domestic violence continues to be an important factor that the court will consider in making its determination of legal decision-making and parenting time. But based on the language of the new statute, the presence of domestic violence now takes on even greater importance. The legislature has added a new factor to A.R.S. §25-403 which requires that the court shall consider "whether there has been domestic violence or child abuse pursuant to section 25-402.03." That section mandates that " joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence." The statute also states that "the court shall consider evidence of domestic violence as being contrary to the best interests of the child." Under the law, abuse of a spouse is considered to be akin to child abuse, leading to " a rebuttable presumption that that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child's best interests."

Under A.R.S. §25-403 if the court determines that a parent has abused drugs or alcohol or has been convicted of a substance abuse offense within twelve months before a petition or request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child's best interests. What constitutes "abuse" of drugs or alcohol is not defined in the statute. The issue will surely be the subject of much litigation in 2013 and beyond.

The Arizona legislature made a number of other important changes, as well, especially in the area of Third Party Rights (such as grandparent and non-parent visitation and legal decision-making); and in the area of Sanctions for Litigation Misconduct.

Arizona's new approach to what was formerly known as "custody" is groundbreaking. It is at the forefront of a growing national trend which views divorced parents as partners in raising children. But is this view realistic? Will it protect the best interests of children in divorce cases, or will it hurt them? The answers to these questions will be determined as the new law unfolds.

Article was published on Gary J. Frank P.C. Blog, 12/29/2012

Gary J. Frank is a litigation attorney and mediator with over thirty years of Family Law experience in dealing in divorce, custody, and parenting issues. Mr. Frank has served on the Governor's Task Force for Prevention of Child Abuse, and has received a Volunteer Lawyer award from the Maricopa County Bar Association for his work with children. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack. He can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org; or through his website at www.garyfranklaw.com. If you are in need of a consultation regarding any area of Family Law, please do not hesitate to contact us today.

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