Rules for Divorce and Custody in Arizona

By Beverly Bird

The hardest part of divorce is often realizing that you might no longer get to live with your children full time. Custody can be one of the most hotly contested issues in a divorce trial, because neither parent wants to face that eventuality. Arizona not only allows you to resolve custody issues on your own, it encourages it. Sometimes parents can't compromise, however, and this necessitates the intervention of the court.

Types of Custody

Custody issues can be confusing because certain terms mean different things in different states. Most states agree that legal custody refers to which parent makes important decisions on their child's behalf, and Arizona is no exception. Sole custody refers only to legal custody in Arizona. If a parent has sole custody, she alone decides significant issues, such as those relating to education or medical care. Joint custody means parents make these decisions together. Physical custody relates to whose home the child lives in the majority of the time. Arizona courts have shown a willingness to order equal physical parenting time for both parents.

Trial Prerequisites

As part of every divorce proceeding involving children, Arizona requires parents to submit to the court a proposed parenting plan detailing which parent has legal and physical custody as well as a visitation schedule describing when the noncustodial parent will spend time with the child. Parenting plans must also tell the court how parents intend to address any custody problems that might crop up in the future. When parents can't agree to a plan – even if they're only disputing one small issue – the divorce must go to trial. However, some Arizona counties may order mediation between parents before the court will decide custody issues.

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Best Interests Factors

When a trial becomes necessary, Arizona judges base custody decisions on the best interests of the child. This may involve the participation of a custody evaluator who meets with the family – and particularly the children – before ultimately making a recommendation to the court. The best interests factors listed in Section 25-403 of the state's legislative code guide evaluators and judges alike. They include the child's preference as well as which parent – if not both – was the child's primary caretaker during the marriage. Courts weigh the willingness of each parent to facilitate a healthy and loving relationship for the child with the other. Domestic violence is an important issue. It relieves an innocent parent of the responsibility to promote a relationship between the child and an abusive parent, and committing abuse weighs against a parent and may cost him custody. However, if one parent falsely accuses the other of child abuse in an effort to gain a custody edge, the court can consider this as well.

Visitation Rights

Arizona's statutes encourage judges to order "frequent and continuing contact" with the noncustodial parent when a child lives with her custodial parent the majority of the time. Exceptions exist if the noncustodial parent presents a danger to the child, either emotionally, morally or physically. Although Arizona is a no-fault divorce state and marital misconduct doesn't influence a court's decisions regarding alimony or property division, it may affect custody matters. A parent's behavior or negative influence can be considered a best interests factor and affect visitation rights, called parenting time in Arizona. Assuming the noncustodial parent has parenting time, a custodial parent can't move out of state with the children – or even more than 100 miles within the state – without giving him 60 days notice first. The noncustodial parent then has a month to file a petition with the court to object to the move.

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