Saturday, May 9, 2009

CHILD CUSTODY

Child custody in Arizona is governed by Arizona Revised Statutes, Section 25-403.


The Court is required to make custody orders in accordance with the best interests of the child. The Court may consider all relevant evidence. Thus, evidence that may not be relevant to the issue of a divorce may be relevant to a determination of child custody. In appropriate cases, the Court may appoint a lawyer to represent the interests of the child, and may order the parents to pay that lawyer.


"Legal custody" is the legal right to make decisions concerning the health, education and welfare of the child. "Physical custody" is the right to physical possession of the child. Custody, either legal or physical, may be shared or granted to one of the spouses.


Where child custody is an issue, the Court is required to order the parties to attend a domestic relations/parent education program. Failure to participate in the program, or to complete the program, may result in the party losing all of the relief they have requested. If there is proof that it is not in the best interests of the child(ren) or the parties, the Court may excuse a party from attending the parent education program.


By statute, the Court must consider at least nine (9) different factors in determining custody. No single factor is dispositive. The factors are:


1. The wishes of the child's parent(s) as to custody;


2. The wishes of the child as to the custodian;


3. The interaction and interrelationship of the child with the child's parent(s), siblings and any other person who may significantly affect the child's best interests;


4. The child's adjustment to home, school and community;


5. The mental and physical health of all individuals involved;


6. Which parent is more likely to allow the child frequent and meaningful contact with the other parent;


7. If one parent, both parents or neither parent has provided primary care of the child;


8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody;


9. Whether a spouse has committed domestic violence.


The Court may not prefer a parent as custodian simply because of gender. Joint custody may be ordered if both parents agree and submit a written parenting plan. Joint legal custody may be ordered without ordering joint physical custody. Visitation rights may be granted to grandparents if it is in the child's best interests. Remember, the Court must act in the child's best interests, not yours.


TOP


Arizona Revised Statutes, Section 25-403.


25-403. Custody; best interests of child; joint custody; modification of decree; fees; children and family services.


A. The court shall determine custody, either originally or upon petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:


1. The wishes of the child's parent or parents as to custody.


2. The wishes of the child as to the custodian.


3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.


4. The child's adjustment to home, school and community.


5. The mental and physical health of all individuals involved.


6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.


7. If one parent, both parents or neither parent has provided primary care of the child.


8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.


9. Whether a parent has complied with chapter 3, article 5 of this title.


B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. If the court finds that domestic violence has occurred, the court shall make arrangements for visitation that best protect the child and the abused spouse from further harm. The person who has committed an act of domestic violence has the burden of proving that visitation will not endanger the child or significantly impair the child's emotional development.


C. If the court determines that a parent or a person seeking custody has been convicted of any drug offense under title 13, chapter 34 or any violation of section 28-1381, 28-1382 or 28-1383 within twelve months before the petition or the request for custody, there is a rebuttable presumption that sole or joint custody of the child by that person is contrary to the best interests of the child. In making this determination the court shall state its:


1. Findings of fact that support its determination that the person was convicted of the offense.


2. Findings that the custody or visitation arrangement ordered by the court appropriately protects the child.


D. To determine if the person has rebutted the presumption established under subsection C of this section, at a minimum the court shall consider the following evidence:


1. The absence of any conviction of any other drug offense during the previous five years.


2. Results of random drug testing for a six month period that indicate that the person is not using drugs as proscribed by title 13, chapter 34.


E. In awarding child custody, the court may order sole custody or joint custody. This section does not create a presumption in favor of one custody arrangement over another. The court in determining custody shall not prefer a parent as custodian because of that parent's sex.


F. The court may issue an order for joint custody of a child if both parents agree and submit a written parenting plan and the court finds such an order is in the best interests of the child. The court may order joint legal custody without ordering joint physical custody.


G. The court may issue an order for joint custody over the objection of one of the parents if the court makes specific written findings of why the order is in the child's best interests. In determining whether joint custody is in the child's best interests, the court shall consider the factors prescribed in subsection A of this section and all of the following:


1. The agreement or lack of an agreement by the parents regarding joint custody.


2. A parent's lack of agreement is unreasonable or is influenced by an issue not related to the best interests of the child.


3. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint custody.


4. Whether the joint custody arrangement is logistically possible.


H. Joint custody 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. In determining the existence of domestic violence, the court shall consider, subject to the rules of evidence, all relevant factors, including, but not limited to, the following:


1. Findings from another court of competent jurisdiction.


2. Police reports.


3. Medical records.


4. Child protective services records.


5. Domestic violence shelter records.


6. School records.


7. Witness testimony.


I. Before an award is made granting joint custody, the parents shall submit a proposed parenting plan that includes at least the following:


1. Each parent's rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training.


2. A schedule of the physical residence of the child, including holidays and school vacations.


3. 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.


4. A procedure for periodic review of the plan's terms by the parents.


5. A statement that the parties understand that joint custody does not necessarily mean equal parenting time.


J. If the parents are unable to agree on any element to be included in a parenting plan, the court shall determine that element. The court may determine other factors that are necessary to promote and protect the emotional and physical health of the child.


K. Unless otherwise provided by court order or law, on reasonable request both parents are entitled to have equal access to documents and other information concerning the child's education and physical, mental, moral and emotional health including medical, school, police, court and other records directly from the custodian of the records or from the other parent. A person who does not comply with a reasonable request shall reimburse the requesting parent for court costs and attorney fees incurred by that parent to force compliance with this subsection. A parent who attempts to restrict the release of documents or information by the custodian under this subsection without a prior court order is subject to appropriate legal sanctions.


L. The court may specify one parent as the primary caretaker of the child and one home as the primary home of the child for the purposes of defining eligibility for public assistance. This finding does not diminish the rights of either parent and does not create a presumption for or against either parent in a proceeding for the modification of a custody order.


M. In a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.


N. No motion to modify a custody decree may be made earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health. At any time after a joint custody order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence pursuant to section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint custody order. Six months after a joint custody order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. A motion or petition to modify a custody order shall meet the requirements of sections 25-408 and 25-411.


O. Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.


P. In a proceeding regarding sole custody or joint custody, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing. If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.


Q. For any custody order entered under this section, the court shall determine an amount of child support in accordance with section 25-320 and guidelines established pursuant to that section. An award of joint custody does not diminish the responsibility of either parent to provide for the support of the child.


R. The court shall not request or order the services of the division of children and family services in the department of economic security unless it believes that a child may be the victim of child abuse or neglect as defined in section 8-201.