Saturday, 22 December 2012 12:26

Changes to Arizona's Custody and Parenting Time Statutes Take Effect on January 1, 2013

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On January 1, 2013, new custody and parenting time ("visitation") statutes take effect in Arizona. The new statutes will end use of the term "custody." Instead, "custody" will become "legal decision-making." As with custody, the Court may award one parent sole legal decision-making, or award both parents joint legal decision-making. Perhaps this is not much of a change, because, under the old statute, legal custody meant the legal right to make the major decisions (such as on health, education, and welfare) on behalf of the children. The factors in the legal decision-making statute have changed slightly, but they remain essentially the same. The potential for change is that the new language may mean that the parent with sole legal decision-making may dictate every day decisions, such as personal care, while the children are in the care of the other parent. This does not seem likely, but only time will tell as Arizona courts begin to make decisions interpreting the new statute. The key issue will be what courts consider to be "routine" decisions and what they consider to be "major" decisions. The sorts of decisions that may be subject to interpretation are whether a child receives a tattoo, what hair and clothing styles the child wears, whether a child is allowed to date, etc.

The potentially more significant changes are in the parenting time/visitation statutes. The old statute generally required that the non-custodial parent should have "frequent and meaningful" contact with the children. The new statutes include the words "frequent" and "meaningful," but also include the words "substantial" and "maximized." For example, the new statutes require that the court enter a parenting plan for the parents that "maximizes their respective parenting time." Does this mean that courts are required to first and most seriously consider an equal time parenting plan? Again, time will tell as courts make decisions interpreting the new statutes.

I predict that the new language will require courts to maximize the non-primary residential parent's parenting time, but not necessarily require an equal time parenting plan. The judges will still have much discretion, but the trend will be towards more equal or close-to-equal time. The legislature does not add words to statutes not intending to change the meaning. Because the legislature has added the word "maximize," for example, the legislature most likely meant it. Therefore, instead of granting every other weekend from Friday night to Sunday night and Wednesday evening to a parent, courts will award more substantial time. Examples may include every other weekend from Thursday night to Monday morning and every Wednesday overnight, or equal time. Again, time will tell.

All of the above is just a brief summary of the new statutes and my thoughts on them. If you find yourself in a divorce, paternity, custody, legal decision-making, parenting time, visitation, or any other family law situation, please do not hesitate to contact me to schedule a consultation. Thanks for reading my blog!

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