Child Custody / Visitation
Arizona laws require the court to determine child custody in accordance with the best interests of the child. The court shall consider all relevant factors, including the following guidelines:
- The wishes of the child's parent or parents as to custody.
- The wishes of the child as to custody.
- The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
- The child's adjustment to home, school and community.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
- If one parent, both parents or neither parent has provided primary care of the child.
- The nature and extent of coercion or duress used by a parent in obtaining a child custody agreement.
- Whether a parent has complied with the educational program regarding children and divorce that is required by Arizona laws.
Preferences of the Court
In awarding child custody, the court may order sole custody or joint custody. The child custody laws in Arizona do not create a presumption in favor of sole custody over joint custody, or vice versa. The court, in determining custody of a child, shall not prefer one parent as custodian because of that parent's sex.
Joint Custody
The court may award joint custody of a child if both parents agree and submit a written parenting plan and the court finds that joint custody is in the best interests of the child. The court may order joint legal custody without ordering joint physical custody.
The court may issue an order for joint custody over the objection of one of the parents if the court makes specific written findings of why joint custody is in the best interest of the child. In addition to the factors listed above in determining custody, the court will consider the following factors in determining whether joint custody is in the child's best interests:
- The custody agreement or lack of a custody agreement by the parents regarding joint custody.
- A parent's lack of agreement is unreasonable or is influenced by an issue not related to the best interests of the child.
- The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint custody.
- Whether the joint custody agreement is logistically possible.
Joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.
Parenting Plan
The parents must submit a parenting plan setting out each parent's rights and responsibilities for the following:
- The personal care of the child and for decisions in areas such as education, health care and religious training;
- A physical custody schedule for the child, including holidays and school vacations;
- A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling;
- A procedure for periodic review of the terms of the parenting plan by the parents; and
- A statement that the parties understand that joint custody does not necessarily mean equal parenting time.
Non-Parent Custody / Visitation
In order for a non-parent to request custody, one must first establish that he or she stands "In Loco Parentis" to the child. In loco parentis is Latin for "in place of a parent." Such is a person essentially treated as a parent by the child, and who has formed a meaningful relationship with the child for a substantial period of time.
In Arizona, a non-parent can request custody by alleging, among other things, that it would be significantly detrimental (harmful) for either of the child's legal parents to have custody. This is a difficult burden to prove and sustain since it is typically viewed that parents have a fundamental right to the care, custody and management of their child(ren). Grandparents, stepparents, relatives and non-relatives should be prepared to prove that awarding custody to the legal parent(s) is not in the child's best interest.
In order to request visitation (as opposed to custody) the non-parent must establish that the visitation is in the child's best interest.
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