Arizona has completely revamped its child custody laws. The new law, which went into effect as of January 1, 2013, completely removes the word “custody” from the statutes. From now on, a parent going to court in a dispute over children will no longer receive “sole custody” or “joint custody.” Instead, the court will award “legal decision-making” and “parenting time.” A judge has the discretion to make decision-making equal; or to give one parent the right to make all decisions affecting the child; or even to split up the decision-making (for example, the court might give Mother the right to make medical decisions, and Father might be given the right to make educational decisions).
There is no real consensus among judges, attorneys, and legal experts as to how the new law will “play out.” Some see the changes as merely cosmetic, while others believe that the new law constitutes a profound shift in the way “custody” cases will be decided in the future. Regardless of which side of the fence you are on, one thing seems clear: The law is designed to place mothers and fathers on more equal footing when it comes to parenting time and decision-making. While the “best interests of the child” continues to be the standard that the court will use in making its ruling, some believe that equal time and decision-making will now be the “starting point” in making that determination.
One of the more significant changes to the law is that where, in the past, the court considered which parent historically provided primary care of the child, judges are now instructed to look at “the past, present, and potential future relationship between the parent and the child.” Undoubtedly, this language will be a point of contention in future family court cases.
Where a parent has been charged with a domestic violence crime or committed a significant act (or acts) of domestic violence, there will continue to be a legal presumption that the parent should not be awarded joint decision-making and equal parenting time. The new law appears to strengthen that presumption. In fact, it goes further by providing that if a parent has abused drugs or alcohol, or has been convicted of a substance abuse offense within the past 12 months, there is a presumption that sole or joint legal-decision making by that parent is not in the child’s best interest. The statute does not define what constitutes “abuse” of drugs or alcohol. This is another issue which will certainly be the subject of much debate as the law unfolds and the meaning of the statutory language becomes crystallized.
There is disagreement among the experts regarding whether the new law will lead to a “flood of litigation.” The law was not made to be retroactive. Therefore, it does not automatically change the status of parents who are already divorced and have custody and parenting time orders. And people who want to change their custody and/or parenting time still have to be able to show a change of circumstances sufficient to justify a modification. However, the revision to the Arizona statutes makes it much more likely that those parents will return to court to seek a modification, and it is possible that the new law itself will provide a legitimate basis for doing so.
If you would like to know how Arizona’s new parenting law might affect you and your children, please do not hesitate to contact us for a consultation. We can be reached at 602-383-3610, or by email at [email protected].