Child Custody Under Arizona Law

By James L. Stroud

        The following is intended for parents who may be involved in an Arizona court case that involves determining custody and access (visitation) issues between a child's natural or adoptive parents. These materials do not cover the rights of step-parents, grandparents, or others who may have an interest in a child's well-being. The purpose is to define some relevant terms and help to evaluate the pros and cons of sole or joint custody. All of this material consists of simplified generalizations, which are subject to exceptions in various situations. The law may be different in states other than Arizona. This article provides background information, rather than legal advice about a particular case, and cannot take the place of consulting with a lawyer.

        Legal Custody. Legal custody has to do with decision making. The phrase "joint custody" usually refers to legal custody. With joint legal custody, the parents typically make the big decisions jointly, such as whether the child will be a Baptist or a Buddhist or whether the child is old enough to date or drive a car. Then each parent is supposed to make the day-to-day decisions in a way consistent with the jointly agreed-upon big decisions. It is possible, though not common, for making the big decisions on a particular topic to be assigned to one of the parents.

        A parent with sole custody makes the big decisions alone, and the other parent is expected to conform to them in making day-to-day decisions when the children are with him or her. Although Arizona law does not state a preference for joint custody, it is more common than sole custody.

        If a parent (even with sole custody) decides unilaterally to enroll a child in private school without consent of the other parent or the court, the Arizona Child Support Guidelines provide that he or she cannot require the other parent to contribute to the cost of the private schooling.

        Also, regardless who has custody, Arizona law allows both parents to have access to records regarding the child--such as medical and school records--except in rare cases when the court finds that giving one of the parents such access would create a danger to the child.

        When the parents have joint legal custody and time with the child will be shared 50/50 or roughly equally, the parents have joint physical custody. True joint physical custody with 50/50 time sharing is not common, except where both parents want it or they have established a record of sharing time that way during their separation.

        If one parent has sole custody, the other parent's time with the child is usually referred to as visitation. If the parents have joint legal custody, there is usually a residential plan that describes the parents' time with the child. This is sometimes called the physical custody schedule. General terms that include both the residential plan or physical custody schedule in a joint legal custody case and the visitation schedule in a sole custody case are access and parenting time.

        In Arizona, the law allows a parent who does not have custody to have frequent and continuing contact with the child, unless limitations are necessary to avoid a danger to the child's physical, mental, moral, or emotional health.

        If there has been domestic violence, joint custody may be precluded by the law. In deciding about the access provisions, there is a presumption (something considered to be true unless proven otherwise) that domestic violence constitutes a danger to the child.

        When the parents have joint legal custody, the one with whom the child spends more time is sometimes referred to as the primary residential parent or as having primary physical custody. The term "physical custody" is mentioned in the statutes, but it is not one of the terms defined in the part of the statutes that describes the different types of custody. So there is a question whether the terms "physical custody" or "primary physical custody" create any particular legal rights in themselves. Often, those phrases are not used in the paperwork at all.

        Pima County has adopted a document that is entitled Pima County Access Guidelines (Visitation), which is available at this web-site. These are recommendations only. The court is not required to follow them. The Guidelines recommend the same access schedule for joint and sole legal custody. The Administrative Office of the Courts has also published guidelines for statewide use, which like the Pima County Guidelines, are recommendations only. These Model Parenting Time Plans can be accessed at www.supreme.state.az.us/dr/booklets.htm

        Having sole custody does not give a parent the right to move away with the child. The law requires a parent to obtain permission from the other parent or the court before taking the child to reside in another state or more than 100 miles away within Arizona, and it applies equally in sole and joint custody cases. The parent wishing to move away with the child must give the other parent at least 60 days advance notice by certified mail, and the other parent then has 30 days to file court papers requesting by a hearing to oppose the move.  If the non-moving party does not object and request a hearing within 30 days, he or she is deemed to have consented to the move.

        Arizona law requires that a parenting plan be signed by both parents, if they agree to joint legal custody. The parenting plan is reviewed by the court and made part of the decree of dissolution of marriage or custody order. A parenting plan must be prepared by the court, if joint legal custody is ordered by the court without the parents having agreed. Any parenting plan must include the following:

        To assist the parents in working out arrangements for child custody and access, some counties offer mediation through their Court of Conciliation, and some require that a case involving custody or access cannot go to trial unless the parties have tried to resolve those issues through mediation. If they are not able to settle, nothing said in mediation can be quoted as evidence in court. In Pima County the mediators at the Court of Conciliation cannot be involved in mediating child support or any other financial issue.

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