Establishing Custody/Legal Decision Making and Parenting Time


Whether you are in the midst of a divorce with children, have a healthy co-parenting relationship, or find yourself standing somewhere in the middle – establishing and maintaining Custody/Legal Decision Making and Parenting Time can seem like a daunting task. Nonetheless, having a written legal agreement defining and detailing Legal Decision Making and Parenting Time is extremely important.  In this post we are going to address common misconceptions of the “custody” process, and explain why establishing an agreement that works for both parties will alleviate stress in the long run.

Custody is Complex

When most people hear the word “child custody” images of divorce and parents fighting over their children usually flood in. Common use of the term often boils down to the following question: “Who will the children live with?” Contrary to popular belief, however, “custody” is a broad term that can be used to describe both legal decision making and parenting time. We will explore these topics in the following sections.

What is Legal Decision Making?

Often referred to as “custody”, legal decision making is the right to make important non-emergency decisions for your children. In Arizona, the primary options for parents are: sole or joint legal decision-making authority. The decisions that fall under the parameters of the parent who has been granted Legal Decision Making include determinations about the child’s education, health care/medical decisions and religious practices. Parents who are awarded joint legal decision making authority are responsible for working together to make these major decisions for their children.  Essentially, the parents agree to share the decision making responsibilities for educational, religious and medical decisions, except emergencies. It is important to note that joint legal decision making does not mean equal parenting time.

What is a Parenting Time Plan?

There is a common misconception that the term ‘custody’ is a reference to which parent has physical care of the minor children; however, this is not necessarily the case. In Arizona, parenting time is the legal term used to define the amount of time both parents will be spending with their children.

A parenting time plan is an agreement by the parties, or established by the Court, which acts as framework outlining the time each parent spends with their children. During his or her parenting time, each parent is responsible for providing basic needs for the child, including but not limited to: shelter, food and clothing. Parenting time plans can assist each party to better achieve planning and scheduling as it sets forth the days and times you will have physical access to your child.  The parents are always free to deviate from the plan by agreement, but in the event there is a breakdown in communication the Parenting Plan serves as a fall-back option for the parents and helps to keep the peace.

Sole or Joint? How Legal Decision Making and Parenting Plans are Determined

Every case presents its own challenges in determining whether sole or joint legal decision making is appropriate and how parenting time should be allocated.  Nonetheless, it is very important to familiarize yourself with the factors listed below. Knowledge of the law will aid in your understanding of the process, and remove the guesswork in how the judge will determine legal decision making and parenting time.

Arizona Revised Statue § 25-403(A) establishes a number of specific factors for the Court to consider, all relating to the child’s physical and emotional well-being.  The best interest of a child is the primary consideration in awarding (or modifying) legal decision-making authority and parenting time.  To the extent it is practical and in the best interests of the child, the court’s goal is to maximize each parent’s parenting time with the child.  In determining what is in accordance with the best interests of the child, the court considers all factors that are relevant to the child’s physical and emotional well-being, including:

  1. The past, present and potential future relationship between the parent and the child.
  2. 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 interests.
  3. The child’s adjustment to home, school and community.
  4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
  5. The mental and physical health of all individuals involved.
  6. 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.
  7. Whether one parents 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 parenting time preference to that parent.
  8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
  9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision making or parenting time.
  10. Whether a parent has complied with chapter 3, article 5 of this title.
  11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

A thorough analysis of the circumstances of each case as applied to the above factors helps the court to decide whether joint or sole legal decision is appropriate and how parenting time should be allocated.  With respect to parenting time, another factor that can impact the judge’s decision is each parent’s work schedule.

A Child Centered Approach

Research and experience shows that children of separated or divorced parents perform better if both parents stay actively involved in their lives.  However, “custody battles” can become so conflict-oriented that they can cause emotional damage to the children involved and alienate them from one or both parents. The process of establishing Legal Decision-Making and Parenting Time can be daunting.  We understand that this issue often arises out of a difficult, stressful and emotionally demanding time in life and we are here to help.

We have experienced divorce attorneys and child custody lawyers who will help you achieve what is best for you and your child. Our family law attorneys have the knowledge you can trust to develop a respectful and peaceful resolution for you and your family.

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