You are most likely familiar with the term “child custody,” as it is probably what you have heard for most of your life. However, this term is not used in the Arizona court system. As of 2013, the legislature changed the terminology to “legal decision-making authority.” That may take some getting used to, as Arizona has made a distinct effort to use a unique term compared to what the rest of the country has used.

“Legal decision-making” is defined by statute in A.R.S. § 25-401 as “the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.” The same statute then clarifies that “legal decision-making” means “custody,” as the term is used in other states and in other statutes that might apply.

As stated in the statute, this term covers the ability to make day-to-day long term and short term decisions for the children most notably in the areas of health, education, religion, and personal care. In our experience at Gillespie, Shields & Taylor, the most common area of dispute is that of education. Parents frequently disagree on where their children should attend school. This is often the function of parents living some distance apart from each other, and each parents wants the children to attend a school closer to the parent, often for the sake of the parent’s convenience. Other disagreements over education also arise, as do disputes over how a child should be brought up in religion and, less frequently, disputes over a child’s health care.

If the parents have joint legal decision-making authority, that means that the parents are expected and required to counsel together to make decisions for their children on these subjects. It also means that neither parent has superior rights to the other parent in this process. Sometimes, a judge can grant the parents joint legal decision-making and grant one of the parents final decision-making in the event of a disagreement. This practice had been common, even though the statute does not mention “final decision-making,” but it was clarified and approved by the Arizona Supreme Court in 2019 in the case of Nicaise v. Sundaram, 245 Ariz. 566 (2019), vacating the Court of Appeals’ earlier opinion on the same subject.

If one parent has sole legal-decision-making, that means the parent may make those major decisions for a child by himself or herself. Even with sole legal decision-making authority, it is often good practice for the parent to consult with or at least inform the other parent before making a major decision, and judges will sometimes order this.

Contrary to what many people believe, having sole legal decision-making does not give one parent the right to determine when the other parent sees the children. Likewise, it does not give the parent authority to dictate what the other parent may or may not do with the children or what people are permitted to be around the children.

To be clear, legal decision-making only refers to the major decision subjects of a child’s upbringing. Again, those are defined by statute as health, education, religion, and personal care.

Parenting time

So then, what about the time children actually spend with each parent? Isn’t that what “custody” really means?

Well, yes, that used to be referred to as “physical custody” sometimes, but in Arizona it’s just called “parenting time.” “Parenting time” means the schedule of time during which each parent has access to a child at specified times. Each parent during his or her scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child’s care.

It is important to understand that parenting time and legal decision-making are two very separate things in Arizona. It is technically possible for one parent to have sole legal decision-making, while the children actually spend more time with the other parent. It is also technically possible for the parents to have joint legal-decision making while one takes little interest in the children.

§For many years, particularly, in Maricopa County, courts have routinely ordered equal parenting time in parenting disputes. We had mentioned the change in Arizona statutes that took effect in 2013. In addition to changing the terminology we just mentioned, Arizona also adopted an official policy that, that absent evidence to the contrary, it is in a child’s best interest to have substantial, frequent, meaningful and continuing parenting time with both parents and to have both parents participate in §25especially in Maricopa County, to make an equal parenting time order the standard.

There are ways around this, but you should be aware that judges will order equal parenting time nearly every time if the issue is brought before them. One exception may be when the parties live too far apart to make an equal parenting time order workable. However, judges will still push this as far as it can go, as we have seen equal parenting time orders across state borders, at least until the children reach school age. Domestic violence and substance abuse are also a big deal under Arizona law, and either of these can certainly be grounds to pursue an unequal parenting time. Still, you should be advised that, generally speaking, it is an uphill battle to ask for anything other than an equal parenting time schedule.

The real ins and outs of equal parenting time from a legal perspective

The standard parenting order in Arizona gives equal parenting time to both parents. This is the “default” or “presumptive” order. Lawyers practicing in Arizona have observed this for some time, even before the legislature stated beginning in 2013 that there is a public policy 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. and 2. To have both parents participate in decision-making about the child.

This stated policy does not actually use the words “equal parenting time.” Nothing in the rest of the statutes in Title 25, which governs family court, actually says a court should order equal parenting time. One could easily argue that, if the legislature really wanted the courts to order equal parenting time, it would have used the term “equal parenting time.” After all, a parent can still have substantial, frequent, meaningful, and continuing parenting time without having equal parenting time. The actual language of the statute could be read to place just as much emphasis on quality as it does on quantity.

Judges also look to A.R.S. § 25-403.02(B) as a basis for the presumption of equal parenting time. That statute directs judges to enter an order that gives parents joint legal decision-making and enter an order that maximizes their respective time with the children if such an order is in the children’s best interest. As before, this statute does not use the term equal parenting time. It does state that parenting time with each parent should be maximized, but there are only seven days in a week and 24 hours in a day, so maximizing one parent’s time with the children necessarily minimizes the other parents. As with A.R.S. § 25-103, if the legislature really meant that parents should have equal parenting time, why didn’t they just come out and say so, using those words?

Regardless, the courts have applied these statutes to award equal parenting time in most cases. More recently, the Arizona Court of Appeals has given an official interpretation to apply to contested parenting time orders. In 2019, our Court of Appeals placed an official stamp of approval on what judges had been doing for years in entering equal parenting orders as a default position. In Woyton v. Ward, 247 Ariz. 529, 531 ¶ 6 (App. 2019), the Court of Appeals declared that equal parenting time was ”presumed to be in a child’s best interest.” The next year, the Court of Appeals affirmed Woyton presumption with a clarification. In Gonzalez-Gunter v. Gunter, 249 Ariz. 489, (App. 2020), the Court of Appeals approved the ”presumption” of equal parenting timbe but also clarified that judges aren’t compelled to order equal parenting time when it is not in the children’s best interests, even if both parents are deemed “fit.” In other words, a parent does not have to be “unfit” to have less than equal parenting time. Gonzalez-Gunter can therefore be argued to give a way around equal parenting time.

A subtle but real angle on these two rulings is that the Court of Appeals painted itself into a bit of a corner by using the word “presumption” in these cases. You see, the word “presumption” or any of its other forms carries legal implications that a lawyer can explain to you. Basically, a presumption requires a party to present evidence that would change a judge’s mind. Questions then arise about what it takes to change a judge’s mind. The legislature didn’t help answer this question in A.R.S. § 25-103 when it stated “absent evidence to the contrary.” What kind of evidence? How much evidence? The legislature didn’t say, and that problem pretty much came full circle when the Court of Appeals attached a form of the word “presumption” with equal parenting time.

In Smith v. Smith, 253 Ariz. 43 (App. 2022), our Court of Appeals addressed this problem while also hitting the question of the presumption of equal time head on. Writing for a different three-panel than the one that decided Woyton and Gonzalez-Gunter, Judge David Gass (who was an excellent judge back when he was on the family court bench, by the way), backtracked from use of the word “presumption” by stating that the Woyton court used it as “short hand explanation of a more comprehensive constitutional and statutory analysis.” Therefore, Smith held that there was no real burden of proof to be borne by either parent. It’s just the wrong way to look at the scenario, legally speaking.

The Smith opinion also came out definitively and stated that there is no real “presumption” of equal parenting time in Arizona under the statutes quoted above; instead, Smith concludes that the real message of A.R.S. § 25-103 and § 25-403.02(B) is that those statutes give every parent the same “starting point” in parenting disputes.

At the end of the day, what is the practical difference?

Unless you have a skilled lawyer who can really parse the statutes and the Smith opinion, the case presents a distinction without much of a difference. Judges will likely continue to be just as in favor of equal parenting as they were before.

However, a dedicated and skilled lawyer can draw on factual distinctions and highlights in these cases that could build a case either for or against equal parenting time, depending on the facts or your case. In every case, the best interests of the children are the lodestar for every judge to follow.

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