Child Custody,
Legal Decision Making Authority
and Parenting Time
Your Guide Through A Difficult Process
When dealing with a legal separation or divorce, the term “legal decision-making” refers to the person(s) with the legal right to make all nonemergency legal decisions for a child, such as those relating to education, healthcare and religious training. Joint legal decision-making indicates that both parents share decision-making and neither parent’s rights or responsibilities are superior.
Parenting time means the schedule of time during which a parent has access to a child. Sole legal decision-making means that one parent has the legal right to make major decisions for the child; the other parent is entitled to reasonable parenting time unless the court finds that it would seriously endanger the child’s physical, mental, moral or emotional health.
Unless otherwise provided by court order or law, both parents are entitled to equal access to documents and other information concerning the child’s education and physical, mental, moral and emotional health. Arizona case law established in 1936 that the court could divide custody for definite periods of time if the best interests of the child would be served by doing so. This divided or joint custody means that the parents share in the responsibility for the child, although it does not necessarily mean they share substantially equal parenting time.
Find out more about:
DIVORCE AND FAMILY LAW
Child Custody, Legal Decision Making Authority and Parenting Time
Orders of Protection
Grandparents’ Rights
Prenuptial and Postnuptial Agreement
Determining Legal Decision Making & Parenting Time
If the child’s parents cannot agree on a plan for legal decision-making or parenting time, each parent must submit a parenting plan, including procedures for exchange, communication and mediation. The court is not allowed to prefer one parent’s proposed plan because of that parent’s or the child’s gender. If the parents are unable to agree on any part of the parenting plan, the court decides that aspect. In determining legal decision-making and parenting time, the court is required to determine what is in the child’s best interest by considering all factors related to the child’s physical and emotional well-being. Such factors include the relationship between the parent and child, the health of everyone involved and which parent is more likely to allow the child contact with the other parent. The court is required to adopt a plan that provides for both parents to share legal decision-making and maximizes both parents’ parenting time, so long as such a plan is consistent with the child’s best interests.
Modification of Legal Decision-Making or Parenting Time
A person cannot make a motion to modify legal decision-making or parenting time earlier than one year after the decree is entered, except if the child’s environment may endanger the child’s health or if domestic violence, spousal or child abuse occurred since entry of the order. After that period of time, to modify the order a person must submit an affidavit or verified petition setting forth detailed facts supporting the requested modification. The person must also give notice and a copy of the affidavit or verified petition to the other parties, who may file opposing affidavits. Statute requires the court to deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings. Case law has determined that to change a previous custody order, the burden is on the moving party to satisfy the court that there has been a material change in circumstances affecting the welfare of the child. If the parent proves such a change of circumstances exists, the court sets a date for a hearing on why the requested modification should be granted. The court may modify a parenting time order whenever modification would serve the child’s best interests, but the court cannot restrict a party’s parenting time rights unless it finds that parenting time would endanger the child’s health.
Third Party Rights
A person other than a child’s legal parents may petition the superior court for legal decision-making or placement of the child if:
the person filing the petition has been treated as a parent by the child and has formed a meaningful parental relationship with the child for a substantial period of time (in loco parentis);
it would be significantly detrimental to the child to be in the care of either legal parent;
a court has not entered or approved an order of legal decision-making or parenting time within one year prior to the petition being filed, unless the child’s present environment may seriously endanger his or her physical, mental, moral or emotional health; and
one of the legal parents is deceased, the parents are not married to each other at the time of the petition or a proceeding for divorce or legal separation of the legal parents is pending at the time the petition is filed. The court must presume, however, that awarding legal decision-making to a legal parent is in the child’s best interest, and it is the responsibility of the third party petitioner to present clear and convincing evidence that this is not the case.
A person other than the child’s legal parents may also petition the superior court for visitation, a schedule of time the child spends with someone other than the legal parent, if:
one of the legal parents is deceased or has been missing at least three months;
the child was born out of wedlock and the legal parents are not married to each other;
for grandparent or great-grandparent visitation, the legal parents have been divorced for at least three months; or
for in loco parentis visitation, a proceeding for divorce or legal separation of the legal parents is pending at the time the petition is filed.
In deciding whether to grant third party visitation, the court must give special weight to the legal parents’ opinions and certain other factors as prescribed in statute, such as the historic relationship between the child and the petitioner.
Parenting Time Schedules
The following plans are just ideas that may or may not work for your children. Feel free to use one of the numbered plans or design a plan that works best for your children, based on work, school, activities, and other considerations. Use this blank calendar to design the schedule that best meets your needs. It’s recommended that you read the Child Development section that applies to your child before deciding on a parenting time schedule.
