One of the most difficult issues to agree on for parents may be how their children will be cared for. In Arizona, child custody and visitation are referred to as legal decision-making and parenting time. Agreeing on legal-decision-making and parenting time is a large but important decision. Your children’s mental and emotional health depend on it.
Both parents normally want the best for their children. If parents cannot agree on legal decision-making and parenting time, a judge will decide for them. Arizona law has what is called the “best interest of the child standard.” Family court judges apply the best interest of the child standard to the unique facts and circumstances of each case.
To understand the best interest of the child standard, first you need to understand the different types of “custody” judges can award.
Arizona divides custody into “physical custody” and “legal custody.” Physical custody refers to parenting time, or when each parent will spend time with their children. Legal custody refers to the rights each parent has to make important decisions on behalf of their children.
Parenting time applies to how the parents will coordinate their time spent with their children. Parents can agree on a parenting plan or the court will determine one for them if they cannot agree. Depending on your children’s age, different parenting plans may work better than others. For example, parents of toddlers and infants may require much different parenting plans than parents of teenage children.
Choosing the correct parenting plan may take some trial and error. There is no “right” parenting plan.
Legal decision-making or legal custody is either agreed to or awarded by the court. Legal decision-making determines who will make important choices for the children. The judge can award legal decision-making to one or both parents to determine religious, educational, and medical decisions.
Parents can agree or judges can award joint legal decision-making, joint legal decision-making with final say, or sole legal decision-making. Joint legal decision-making means both parents may make decisions for their children while the children are in their care. Joint legal decision-making with final say means both parents actively try and work through decisions together, but one parent has the “final” decision-making authority. The court will hear any disputes arising over joint legal decision-making. This means if both parents cannot agree on a decision, the court can order the decision for them.
Sole legal decision-making means one parent has final say over all legal decisions. Arizona courts strongly prefer both parents be actively involved in their children’s lives. This means joint legal decision-making is most likely to be awarded by a judge. Courts rarely award sole legal decision-making in cases without history of domestic violence, child abuse or neglect, or substance abuse.
When parents cannot agree on parenting time or legal decision-making, the judge will use the best interests of the child standard to decide. The best interest standard provides courts with a set of considerations to determine parenting time and legal decision-making.
Judges must decide parenting time and legal decision-making on the following factors:
- Both parents’ preferences on parenting time
- The children’s preferences
- Each child’s relationship with the parents
- Each child’s relationship with siblings and others
- Each child’s ability to adjust to new schedules
- Both parents’ physical and mental health
- Each child’s physical and mental health
- Which parent is more likely to allow contact with the other parent
- Any history of domestic violence or child abuse by either parent
- Which parent has historically been the primary caregiver to the child
Judges weigh the best interest factors and apply them to the specific facts of your case. Highlighting the bond you share with your children and your ability to effectively care for them is critical. Consulting with a family law attorney can you help you present your best case and achieve realistic goals.
Understanding how the best interest factors apply to your case is important. You and your family law attorney can help the judge understand why your parenting plan and decision-making is in your children’s best interest.
Remember the judge only applies the best interest standard when the parents cannot agree for themselves. It is always a better idea to negotiate in good faith and try to settle differences without involving a judge. Parents should compromise and put their differences aside when negotiating. No one can tell you how a judge is going to rule.
The Impact On Your Children
The impact a divorce or separation can have on your children cannot be overstated. Younger children especially may struggle to understand what is happening to their family. Settling parenting time and legal decision-making issues with civility can provide added stability.
Parents with children with disabilities or special needs are encouraged even more to seek out of court agreements. Family law courts are extremely busy. No one will know the unique challenges of parenting better than the parents. Hiring a family law attorney to help you navigate the best interest standard and negotiate on your behalf is highly recommended.