Who Has More Rights to a Child During a Divorce in Arizona?

A marriage that resulted in children adds another layer of concern and stress during divorce proceedings. Ultimately, you must decide what happens with any children you have together. Where will your children live? Who will make legal, educational, and other important decisions regarding them? Who will pay for their everyday expenses? This leaves many separating couples with one primary question: who has more rights to a child?

What Is the Best Interest for the Child?

When it comes to proceeding with a divorce and making important child custody and child support decisions, the court’s goal is always to do what is in the best interest of the child or children involved. There are several different factors the court will consider to determine what “best interests” looks like in your unique circumstances. These factors can include:

• The past, present, and future relationship that the child has or could have with one or both parents. This can be presented via the parents, though many courts obtain input from experts working on the case. In some circumstances, the judge may interview the child, but this is dependent on the child’s age and maturity.
• The interactions and interrelationships of a child with the parent, siblings, or other people that could have a significant impact on their life.
• Necessary adjustments to the home, school, or the child’s activities or community.
• Mental and physical health of all parties involved.
• Which parent seems more likely to allow consistent, meaningful interactions with the non-primary parent.
• Any history or risk of domestic or child abuse, or any false claims of domestic or child abuse.

How Is Custody Defined in Arizona?

The state of Arizona stopped using the term “custody” to refer to certain legal responsibilities in January of 2013. Instead of legal custody, this concept is now known as “legal decision-making.” Similarly, instead of “physical custody,” the concept is now known as “parenting time.” However, it is important to note that legal decision-making and parenting time are not the same thing.

Legal decision-making means that you have the right to make important decisions about the child’s upbringing. This can include decisions regarding their education, healthcare, and religious affiliation, among others. Parenting time refers to living arrangements and the responsibilities of day-to-day care.

How Do I Prepare My Children?

Before embarking on mediation, collaborative divorce, or the court proceedings of a divorce to develop a parenting plan, it is important to prepare your child as much as possible for what lies ahead. A divorce can have a profound impact on a child’s emotional development, regardless of age.[fn]Jiménez-García, P., Contreras, L., & Cano-Lozano, M. C. (2019). Types and intensity of postdivorce conflicts, the exercise of coparenting and its consequences on children. Revista iberoamericana de psicologia y salud., 10(1), 48-63.[/fn] Proper preparation and remaining mindful of your child’s needs throughout the process can minimize this impact.

The overall well-being of your child can largely depend on how parents handle the divorce. Going through a divorce can be emotionally draining and stressful for the adults involved. How this impacts the relationship you have with your child and how that alters the way they see their other parent is a critical component of how you will function moving forward, no matter the outcome of your decision-making or parenting determinations. As a result, it is important to keep any frustration and anger away from your children as much as possible.

What Is a Parenting Plan?

As a result, Arizona strives for a co-parenting model for divorce outcomes over child custody. When possible, it is strongly encouraged that parents create a parenting plan that follows in the best interest of the child for approval by the court. This can largely depend on the separating couple’s ability to work together.

In Arizona, it is mandatory to take a parent information course when the court is asked to determine support, visitation, and parenting time. This course can provide the necessary information to help parents make informed decisions. When you are seeking shared parenting time, you are required to submit a written parenting plan. This provides a defined, predictable custody agreement that you both agree to abide by. If you are involved in a high-conflict case, a parenting coordinator can assist with dispute resolution and help create a parenting plan that is fair to both parties involved.

So, Who Has More Rights to a Child? The Mother or Father?

It is no secret that for a long period of time, mothers were more likely to become the primary caregiver after a divorce. This has long had negative repercussions on fathers who were just as qualified, if not more qualified, to take the primary care role.[fn]Dudley, J. R. (2021). The consequences of divorce proceedings for divorced fathers. The Consequences of Divorce: Economic and Custodial Impact on Children and Adults, 171-193. Routledge.[/fn]  However, times are changing. In recent years, more parents are creating shared parenting arrangements, and more men are designated the primary caregivers.

In fact, in the state of Arizona, no parent automatically has more rights than the other. This is because, as previously mentioned, the court system in Arizona strives to achieve the best interests of the child. This means that predetermined parenting time or decision-making arrangements based on the gender of the parent simply do not apply.

When it comes to who is more likely to win a custody battle, the answer truly depends on several factors. There is no denying that there is a widely held belief that women receive primary caregiver status more often than men. This is largely due to traditional gender roles. However, in many family households, both parents work outside of the home, which can make it easier and more rewarding to choose shared parenting time since both parents can share financial, decision-making, and child-rearing responsibilities.

So, how can a parent lose a custody battle as public perception continues to shift? Courts in Arizona—and all over the country—have taken a more equitable view of men and women in custody battles. However, in most cases, neither parent is disqualified from parenting time unless they are determined unfit.

What Makes a Parent Unfit in the Eyes of the Court?

Coming up with a parenting plan and determining what is best for the child isn’t an easy process. In some circumstances, one parent may seek sole legal decision-making responsibilities and parenting time because the other has proven unsuitable to raise their children. To find success, they need to be able to prove to the courts that the other parent is unfit to share parenting time. It is important to note that every state is different when it comes to determining if a parent is unfit.[fn]Rose, M. R., & Sheikh, N. R. (2021). Examining value-added: Jury-trial rights in termination of parental rights cases. Justice System Journal, 1-12.[/fn]

In Arizona, these criteria could include:

• Childcare involvement. Do the parents already share childcare, or does one parent rely on the other for the bulk of this care?
• The safety of the child. This could include bringing the child to an unsafe area, leaving the child alone, or participating in unsafe activities such as driving under the influence.
• History of domestic violence. This could include domestic violence toward the other parent or a record domestic violence against other partners.
• History of child abuse. This could include violence towards any child in the parent’s life.
• History of substance or alcohol abuse. Past or current addictions can interfere with a parent’s ability to properly care for their child.
• Child’s attitude towards the parent. A judge may consider the child’s attitude towards the parent, such as their level of comfort, or if they seem afraid or unresponsive.
• Mental capacity. A judge and other professionals can help determine if a parent has the mental capacity to provide unsupervised care for the child.
• Existing relationship between parents. Divorces and child custody can cause stress and bitterness between the separating couple. If one parent is unfairly alienating the child from the other parent, they could be deemed unfit. The court wants separating couples to be able to work together amicably to benefit their child.

The court will ask for substantial evidence of the above to prove that a parent is indeed unfit. This relies heavily on documents and records such as police reports, criminal history, medical records, past allegations, and any other documentation. The court will also accept witness statements to corroborate any claims provided. It is important that if you are seeking full custody because your child’s other parent is unfit, you remain calm and stick to the facts. If you are a parent who fears this could happen to you, it is best to make the necessary changes as soon as possible to show your willingness to become the type of parent your child needs.

Parenting Time and Legal Decision-Making FAQ

Can I Request Parenting Time and Child Support During the Divorce Process?

A parent can file for a temporary order at any point before or during the divorce process. This can help provide structure to a process that can feel overwhelming. This order can address important concerns such as child support, parenting time, access to personal items, school pickups, and more. It is important to keep in mind that this isn’t a permanent solution, and only applies while the case is ongoing.

Can I Seek Full Custody?

In Arizona, the court starts with the presumption that parents should share parenting time.[fn]Fabricius, W. V., Aaron, M., Akins, F. R., Assini, J. J., & McElroy, T. (2021). What happens when there is presumptive 50/50 parenting time? An evaluation of Arizona’s new child custody statute. Routledge International Handbook of Shared Parenting and Best Interest of the Child, 370-383. Routledge.[/fn] From there, it is up to the court to determine what is in the best interest of the child. However, you can pursue sole parenting time with final decision-making authority in education, medical, and religious matters. As previously mentioned, in most cases where one parent seeks full custody, there are serious concerns regarding child abuse, domestic violence, mental health, criminal history, or a problem with drugs or alcohol. You must be able to present to the court why you feel retaining sole parenting time and decision-making responsibilities would be in your child’s best interest.

Can a Parent Keep a Child Away from Another Parent?

Not without a legal reason, such as a declaration of an unfit parent or court order. In Arizona, you are required to agree to a documented parenting plan. This plan will lay out important rules and guidelines for decision-making and legal actions for the shared child. If the agreement includes visitation, keeping a child away from the other parent can be a direct violation of its terms.

Can a Parent Leave Arizona With a Parenting Plan in Place?

If a parent were to try to leave the area with a child under a court order that mandates shared parenting time, this could be a serious issue if it violates the court order. This can be categorized as a parental kidnapping, which involves illegally depriving the other parent of custody or visitation.[fn]Leonardo, J. T. (2018). International parental kidnapping: An overview of federal resources to assist your investigation and prosecution. Dep’t of Just. J. Fed. L. & Prac., 66, 159.[/fn] If one parent wants to relocate to another region, they must provide the other parent with a 60-day advance notice if the move is 100 miles or more. These laws are created to help ensure that one parent can’t deny the other a relationship with their child.

How Long Can a Parent Go Without Seeing a Child?

In Arizona, family court wants both parents to have adequate parenting time with their children. This doesn’t necessarily mean exactly equal parenting time—it can mean one parent has less time or even very sparse visitation time depending on the unique circumstances of the case. In general, however, the court holds that no parent should go more than six months without contacting their child via letters, phone calls, or visitation—even in cases where the parent is imprisoned or living out of state. When no contact is combined with a failure to pay child support, this can constitute child abandonment since the parent has made no effort to maintain a relationship with the child, and the court may rescind the parent’s rights.[fn]Arizona Revised Statute (A.R.S), Section 8-531(1), retrieved on March 9, 2022, from https://www.azleg.gov/ars/8/00531.htm[/fn]

Does Joint Decision-Making or Shared Parenting Time Mean There Is No Child Support?

Joint legal decision-making and shared parenting time does not mean that there is no child support determination. In fact, Arizona law states that both parents must provide financial support for their children.[fn]Arizona Revised Statute (A.R.S.), Section 12-2451, 25-501, retrieved on March 9, 2022, from https://www.azleg.gov/ars/25/00501.htm[/fn] Child support is largely determined based on a shared income model. The court will determine what amount, if any, is necessary to cover the basic needs of the child.

Rely on Qualified Legal Representation To Protect Your Child Custody Rights

In Arizona, the laws are structured in such a way that neither parent is favored, promoting shared parenting and legal decision-making responsibilities whenever possible. The court will do what it can to provide the circumstances that are best for the child.

It is crucial to have quality representation on your side. Contact the skilled legal team here at The Valley Law Group for your child custody needs—we can help you present your concerns to the court and achieve the best parenting arrangement for your family.

Ryan Reppucci

Ryan Reppucci, Founder/Director of Legal Operations of The Valley Law Group, is recognized as one of Phoenix’s leading family law attorneys. After graduating from Arizona State with the highest honors and inclusion in America’s most prestigious student honor societies, Ryan attended the University of Detroit Mercy School of Law. His career as a law student was decorated with numerous awards, including the University of Detroit Mercy School of Law Book Award, nomination for membership in Who’s Who Among Students in American Colleges and Universities, as well as Moot Court.

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