Arizona Revised Statutes Regarding Custody and Parenting

Most of the laws regarding legal decision making (legal custody) and parenting time are from the Arizona Revised Statutes (laws passed by the Arizona legislature) and the Arizona Rules of Family Law Procedure (rules passed by the Supreme Court of Arizona).

Arizona Revised Statutes – Legal Decision Making and Parenting Time.

Arizona’s Statutes are divided into approximately 49 titles (i.e. each title is the size of a large book). Arizona’s divorce and family law statutes are generally contained in Title 25.

The statutes regarding legal decision making and parenting time are mainly under Title 25 Chapter 4 (i.e. starting with A.R.S. Section 25-401 through  A.R.S. Section 25-417). The statutes regarding grandparent and other third-party custody and visitation are also included in this chapter of the statutes. We have summarized some of the more important statutes for your convenience. These are only summaries for your convenience and general understanding, and thus to understand the full scope of each statute, the reader will need to read the statutes verbatim.

A.R.S. Section 25-401 (Definitions) contains important definitions including the definition of legal decision making, joint legal decision making, sole legal decision making, parenting time and others.

A.R.S. Section 25-403 (Legal decision-making; best interests of child) is one of the most important statutes in legal decision making and parenting time cases. This statute sets out the main factors that the Court looks to in determining the children’s best interests. These factors are addressed in the prior sections of our Website. Keep in mind that the statute makes it clear that the Court must consider all factors that are relevant to the children’s best interests, not just the ones that are listed by the statute.

A.R.S. Section 25-403.01 (Sole and joint legal decision-making and parenting time) adds some additional factors that the Court must consider when determining whether to award joint or sole legal decision making in addition to those set forth in A.R.S. Section 25-403. The most important factor is the past, present and future ability of the parents to cooperate about decisions involving the children. The statute also makes it clear that sole legal decision making  cannot be used to trump the other parent’s parenting time. The statute also makes it clear that even if there is sole legal decision making the other parent is still entitled to substantial and continuing parenting time unless the Court finds after a hearing that such parenting time would endanger the child physically or emotionally.

A.R.S. Section 25-403.02 (Parenting Plans) addresses what needs to be included in a final parenting plan adopted by the Court. The statute provides a presumption of joint legal decision making and maximum parenting time for each parent subject to the best interest factors. The statute makes it clear that the Court cannot prefer one parent over the other based upon the parent’s or children’s genders. The statute goes on to explain that parenting plans must include parenting time schedules, holiday and vacation schedules, details regarding parenting exchanges of the child, how disputes are to be resolved, how communications between the parents are to take place, and various other matters that must be addressed.

A.R.S. Section 25-403.03 (Domestic violence and child abuse) addresses situations where one or both parents have engaged in domestic violence between themselves or toward the children. If the court finds significant domestic violence or a significant history of domestic violence, joint legal decision making and substantially equal parenting time  cannot be ordered unless the Court makes findings that the party who committed such domestic violence has demonstrated that joint legal decision making and/or substantially equal parenting time is in the children’s best interests, and that the violator has successfully completed domestic violence programs or other remedial actions that demonstrate that domestic violence is likely to not happen in the future.  The Court can place various restrictions and conditions for purposes of parenting time on a parent that has committed such degree of domestic violence in order to protect both the children and the other parent. The presumptions set forth in the statute does not apply if both parties have committed such domestic violence.

A.R.S. Section 25-403.04 (Substance Abuse) addresses situations where one or both parties have engaged in recent substance abuse (alcohol, legal or illegal drugs).  There is a presumption against a parent who has abused drugs or alcohol or been convicted of any drug offense within twelve months prior to the Court proceedings. Unless the presumption is rebutted, the offending person cannot be granted sole or joint legal decision making. Such may also impact the offending parent’s parenting time. To rebut such presumption, the party will need to show the absence of prior convictions for the last five years, clean drug testing for at least six months, and possible other conditions imposed by the Court.

A.R.S. Section 25-403.05 (Sexual offenders; murderers; legal decision-making and parenting time; notification of risk to child). This statute states the obvious, i.e. that there is a strong presumption against joint legal and unrestricted parenting time to a parent convicted of sex crimes or of murder. The parents are also required to notify the other parent if the child is going to be around a registered sex offender or person convicted of a dangerous crime against children.

A.R.S. Section 25-403.06 (Parental access to prescription medication and records). This statute provides that absent a Court order otherwise, both parents are entitled to equal access to the children’s medications, health care records, educational records, and mental health records. The other parent cannot interfere with such access and must provide such to the other parent when in that parent’s control.

A.R.S. Section 25-403.08 (Resources and Fees). There are several statutes that apply to requesting attorney fees and costs from the other side. This statute provides that a party with less financial resources can request attorney fees and costs up front for purposes of litigation involving the children so that the party can hire an attorney, experts etc.

A.R.S. Section 25-404 (Temporary Orders). This statute provides a mechanism for a party to request “temporary” orders regarding legal decision making and parenting time while the case is going on and prior to a final trial. The goal is to make sure the parties do not fight between themselves regarding such matters by allowing the Court to make temporary non-binding orders while the proceedings are still going on. These orders may be changed by agreement or after the final trial or evidentiary hearing takes place.

A.R.S. Section 25-406 (Investigations and Reports). This statue provides that a Court may appoint experts to investigate and issue reports regarding the parents, child and issues that may help the Court determine the children’s best interests for purposes of legal decision making and parenting time. Some of these appointments are explained in more detail in earlier portions of our Website. Any such expert must have the credentials described in the statute. It should be noted that a Court cannot rely entirely upon an expert’s report but must make findings on its own (which may refer to the expert’s analysis).

A.R.S. Section 25-408 (Rights of each parent; parenting time; relocation of child; exception; enforcement; access to prescription medication and records). This statute frankly is a conglomeration of many different issues stuffed into one statute. The first part of the statute regards parent’s attempts to relocate with minor children where the parties have a prior court order or written parenting agreement. The statute includes notice requirements, and procedural requirements to obtain Court permission or to prevent such relocation. The Court sets forth the factors that one must establish by clear evidence to obtain the Court’s permission to relocate. The statute then moves past relocation issues and in subsection J includes a provision that the Court must assess attorney fees and costs against any parent that unreasonably violates  court-ordered parenting time.  In subsection K, the stature reiterates that each parent is entitled to access to the child’s medications and other information about the child unless the Court specifically finds that such access may endanger the child.

A.R.S. Section 25-409 (Third party rights). This is the statute that deals with grandparent and other third-party visitation and legal decision making. These issues are addressed in prior sections of our website. Not all grandparents can obtain independent visitation, especially where the parents of the children at issue are still married. It is presumed that grandparent’s visitation with the grandchildren will take place during the parenting time of their own children. Thus, the only time grandparents can generally seek visitation is when their child (i.e. the legal parent) is deceased, has no parenting time or refuses the grandparents access. The requirements to obtain legal decision-making authority is even a greater standard, including showing that neither of the legal parents are fit to have the children and that the grandparents or other third party has acted in the role of a parent.

A.R.S. Section 25-410 (Judicial Supervision). Subsection A of the statute addresses the parameters of sole legal decision making and makes it clear that if one of the parents is designated as the sole legal decision maker, such person may make all major decisions regarding the child unless specific terms limit such authority or the Court determines that the decisions being made endanger the child physically or mentally. Subsection B provides the Court authority to order only supervised parenting time or other restrictions where the child’s may otherwise be subject to physical or emotional endangerment from the other parent.

A.R.S. Section 25-411 (Modification of legal decision-making or parenting time; affidavit; contents; military families). This statute applies where a parent desires to modify a prior Court order regarding legal decision making and parenting time. A parent must generally wait a year from the last Court order regarding such matters unless the parent can show endangerment of the child, the other parent violates the parenting orders, domestic violence or some other extreme circumstances. The statute also provides various protections for deployed military personnel. Subsection J of the statute provides that courts cannot restrict a parent’s parenting time rights unless such would seriously endanger the child’s physical or emotional health. Subsection K addresses situations where a parent is charged with a dangerous crime against children or domestic violence against minors. Subsection L provides certain requirements to be included in a petition to modify legal decision making and parenting time. Subsection M provides that the Court award fees and costs against a party filing a modification petition that constitutes harassment or is “vexatious”. Subsection N clarifies that the requirements are not the same if one only seeks a modification or clarification of parenting time and does not request a change in legal decision making. Superimposed upon these statutory requirements is the consensus from case law that a party must show a “substantial and continuing change of circumstances” as part of a petition to modify parenting time or legal decision making.

A.R.S. Section 25-414 (Violation of visitation or parenting time rights; penalties). This statute applies when a parent does not comply with prior Court orders regarding legal decision making and parenting time. The statute includes the procedural requirements necessary to file such a petition. The Court may impose fines, require make-up time, order counseling, require parenting classes and any number of other remedial measures or penalties against the offending parent. The Court can order the offending party to pay the other party’s attorney fees and costs. If in the children’s best interests, such violations may also give rise to the Court modifying the offending parent’s parenting time or taking away legal decision-making authority.

A.R.S. Section 25-415 (Sanctions for litigation misconduct). This statute even goes further than A.R.S. Section 25-414 if a parent is guilty of wrongful actions during litigation involving the children. This includes a directive to the Court to impose attorney fees and costs and possibly other damages against a parent who makes certain false claims, violates discovery and disclosure rules and other egregious actions.

A.R.S. Section 25-417 (Parent’s blindness; burden of proof; specific written findings; definitions). This statute provides certain protection against a parent that is blind for purposes of parenting time and legal decision-making orders.