Monday, 19 August 2013 13:27

Application of the New Custody and Parenting Time Statutes

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On January 1, 2013, new custody and parenting time statutes took effect in Arizona. One of the more obvious changes is that "custody" is now known as "legal decision making." Legal decision making is the right and responsibility to make the main life decisions regarding a child. It includes decisions regarding health, education, welfare, and religion. Parenting time means visitation. Parenting time is the schedule and amount of time the child spends with each parent.

One of the big speculations about the new statutes was that they would cause Arizona family court judges to keep awarding parents joint legal decision making in most cases and award equal parenting time in more cases than in the past. I made this speculation because the new statutes include phrases like "maximize parenting time" and I cannot see a better way to maximize both parents' parenting time with the children than an equal parenting plan. Many other family law attorneys in Maricopa County made the same interpretation of the new statutes, but we all agreed that only time would tell if we were correct.

It appears that time has proven us right. Most family court judges have since told parties and their attorneys that they are beginning with the assumption that they will award joint legal decision making and equal parenting time and they will only award something else if the evidence at trial gives them a compelling reason to do so. Joint legal decision making means that both parents make the decision together. Sole legal decision making means that the parent with sole legal decision making makes the decisions.

For example, the last time I heard a judge make this remark, I was covering a resolution management conference for another attorney. I was in my favorite judge's courtroom representing a party in a divorce with minor children. The judge cited Arizona Revised Statute Section 25-103(B), which states:

It also is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child's best interest:

1. To have substantial, frequent, meaningful and continuing parenting time with both parents.

2. To have both parents participate in decision-making about the child.

The judge said that her interpretation of this statute is that she will award joint legal decision making and equal parenting time unless she finds that one of the parents is an unfit parent. This actually goes further than what I have heard other judges declare because she used the term "parental unfitness." People throw that term around a lot, but most people do not know what it actually means. It is a very high standard to meet when you are trying to prove that a parent is unfit. It basically means that a parent is unable or unwilling to provide the basic day-to-day needs of his or her child, including to protect the child from harm and to not harm the child. Therefore, to be an unfit parent, a parent must go beyond just being a bad parent or making bad decisions. Parental unfitness is the basic standard used in juvenile court to sever a parent's rights. Therefore, it looks like it will now be an uphill battle for any parent seeking an order other than joint legal decision making and equal parenting time, unless that parent has some very compelling evidence. In at least one judge's courtroom, that compelling evidence must be sufficient to sever a parent's rights in juvenile court.

Even with this new trend of awarding mostly joint legal decision making and equal parenting time, there is plenty of room for a judge to tailor a parenting plan to a specific family's needs because there are countless ways to equally divide parenting time. Judges can alternate holidays, such as entering an order that says that the child will spend Thanksgiving in odd-numbered years with the father and in even numbered years with the mother, while spending Christmas in odd-numbered years with the mother and in even-numbered years with the father. Alternatively, judges can divide the holidays themselves, such as entering an order that in odd-numbered years the child will spend December 24 at noon until December 25 at noon with the father and December 25 at noon until December 26 at noon with the mother, while doing the opposite in even-numbered years.

There are also several ways to evenly divide non-holiday time. My daughter spends every other week, from Sunday night to the following Sunday night, with me. On the alternating weeks, she is with her mother. This is commonly known as a week on, week off parenting plan. Sometimes, judges will make an order allowing for a mid-week visit or a mid-week overnight visit during the middle of the week, such as on Wednesday night.

There is also a plan known as 5-5-2-2, under which a child spends every Monday and Tuesday with one parent, every Wednesday and Thursday with the other parent, and alternates weekends, which consist of Friday, Saturday, and Sunday. The result is that every two weeks the child spends five days with one parent, then five days with the other parent, then two days with the first parent, and then two days with the other parent before starting the pattern all over again (this may make more sense if you visualize it by marking it on a calendar or finding it here:

Another equal parenting plan is commonly known as 3-2-2-3. It is just like the 5-5-2-2 parenting plan with one exception: the parents also alternate Monday through Tuesday and Wednesday through Thursday such that the child spends three days with one parent, then two days with the other parent, then two days with the first parent, and then three days with the other parent. On a calendar it looks like this:

The final common method to equally divide a child's time is known as 4-3-3-4. This means that one parent has the child the same three days every week (such as Sunday evening until Wednesday evening), the other parent has three other days every week (such as Wednesday evening through Saturday evening), and the parties alternate the remaining day (Saturday evening through Sunday in our example). You can see another example here:

Each of these equal time parenting plans have their advantages and disadvantages. Therefore, you should examine your family's situation and know which plan you want to seek before going to court. An experienced family law attorney can help. I offer a discounted initial consultation that lasts one hour and would love to help you with your family court matter.



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