GillespieShields is committed to providing access to exceptional legal services throughout the current coronavirus (COVID-19) crisis. The firm is providing a reduction on all professional fees for new hourly matters through May 1, 2020. Please call our intake team today, 602 870 9700. Learn more

How Does The Court Determine Child Custody In Arizona?

When parents separate or divorce, the children’s needs must be met. If the parents cannot agree on a parenting plan, the court will impose one or make decisions about the children’s health and welfare. Choosing how much time the kid will spend with each parent and who will be the primary caregiver is often part of this process. Unmarried parents, relatives, or others may petition the court for custody or parenting time in some cases. The court’s judgment is based on the child’s best interests in each situation.

When parents split or divorce, determining child custody is frequently the most essential and toughest issue to consider. It’s very uncommon for both parents to disagree about what custody and visitation arrangement is best for the child. If the children are of legal age, they may have an opinion on where they should reside following the divorce.

Many states, including Arizona, require courts to consider the child’s wishes while choosing custody, although this is only one of the considerations they will examine.

The Difference between Custody and Parenting Time

Custody is a legal word that refers to a person’s right to make choices concerning a child’s care and wellbeing (for example, decisions about education, health care and religious training). The “custodial parent” is the parent who has custody of the children. In many situations, the kid spends the majority of his or her time with the custodial parent. The law does not prefer one kind of custody over another, nor does it make choices based on the parent’s gender.

Parenting time is a legal phrase that refers to a kid’s ability to spend time with a parent who does not have sole legal custody of the child. The “non-custodial parent” is a term used to describe this parent.

When parents seek a dissolution of their marriage (divorce) or a legal separation, custody and parenting time issues frequently emerge. Custody issues can, however, develop between parents who have never married or who no longer live together. Custody and parenting time issues persist after the divorce is finalized. Parents may argue in these situations over who makes choices regarding the kid’s health, welfare, and education, as well as where the child resides and how much parenting time a non-custodial parent gets.

Common terms used in connection with Child Custody

  • Sole Custody

This indicates that a child’s legal custody is solely in the hands of one individual. The court directs that one parent be responsible for making significant decisions about the child’s care or welfare in this circumstance. Although both parents are free to address these issues, the court-appointed parent has the power to make final choices if the parents cannot agree.

  • Joint Custody

This can refer to shared legal custody, joint physical custody, or a combination of the two. In most circumstances, both parents must agree to and submit a written parenting plan to the court in order to receive a joint custody order.

  • Legal Custody

Legal custody refers to the situation in which one or both parents are in charge of making important choices about the child’s care and wellbeing. “Sole legal custody” refers to when legal custody is granted to only one parent. There is no legal preference for one type of custody over another.

  • Joint Legal Custody

When a court awards joint legal custody, each parent has equal authority to make choices concerning the child’s care and welfare, and neither parent’s rights are superior to the other’s. Even when shared legal custody is awarded, the court may order that some decisions be made by just one parent in the best interests of the child. The court has the authority to impose joint legal custody but not shared physical custody.

The legislation also permits the court to give joint legal and physical custody, or both, in addition to sole custody.

The state of Arizona does not prefer one type of custody over another. Furthermore, due of a parent’s sex, the court may not choose that parent as a caretaker.

How to Get a Custody Order?

Only under limited circumstances can the court issue a custody order. Custody is usually decided when parents seek a formal separation or divorce, or when parents petition the court to overturn a custody decision issued in a previous separation or divorce case. When one parent files a court lawsuit to determine paternity (or maternity) of a child, custody may be ordered.

When a parent initiates a court case for legal separation or divorce and the parents are unable to agree on child custody, the court is forced to make a decision. These court rulings are made at temporary orders hearings and, if the parties are unable to reach an agreement, during final trial. The court has the ability to amend (modify) a prior custody order once a formal separation or divorce has been issued.

Can Custody Orders be Changed?

A custody order can be modified by either parent by submitting a written request to the court. To modify a current order, it must be demonstrated that the child’s best interests are being served. A fee is paid for filing the request with the Clerk of the Superior Court; however, there are restrictions on requesting a change.

For example, unless there are unique circumstances significantly harming the child’s bodily, mental, emotional, or moral health, a request may not be submitted for one year from the date of the previous ruling. If a type of joint custody has been imposed, a change can be requested at any time if there is proof of domestic violence, spousal abuse, or child abuse since the prior order. In a shared custody scenario, a parent must wait six months before requesting a change if one of the parents has failed to follow the court’s custody order.

Custody Disputes

The court may send the parents to internal court mediation services if there is a custody issue. This procedure allows the parents to agree on custody and other problems; but, if the parents are unable to agree on custody, the court will make the decision for them. 

Occasionally, the court will seek professional counsel from outside specialists who will assess the family situation and provide a custody opinion. In rare cases, the court may additionally order a social service or other organization to investigate. In every instance, the court must make a custody decision based on the child’s best interests.

GillespieShields Mesa Arizona Top Family Law Attorney

By Azwatchdog – Own work, CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=5816262

When Parents Agree on Custody Arrangements

After a formal separation or divorce, it is usually ideal if parents can agree on child-rearing decisions. The court will typically accept the parents’ joint agreement, but the court’s custody decision must be made in the child’s best interests. Following an examination of the agreement’s provisions, the court may be required by law to refuse to recognize the parents’ agreement.

Factors that the Court considers when deciding what’s in the best interest of a child

State law offers advice to courts by stating criteria that should be considered by the court. These factors include: 

  • The parents’ wishes 
  • The child’s wishes
  • How the child interacts with each parent and any other children in the family
  • Each person’s health
  • The child’s adjustment to home
  • School and community
  • Which parent has primarily provided care for the child in the past 
  • Which parent is more likely to allow the child to have frequent and meaningful contact with the other parent.

A person who is not the child’s parent can also have custody of the child 

A person who acts in loco parentis to a kid has the legal right to petition the court for custody (or parenting time). To be in loco parentis, a person must have been treated as a parent by the child for a significant length of time and have developed a genuine parental connection with the kid. There are other conditions that must be satisfied before a request to the court can be filed. One of the child’s parents must have died, the child’s legal parents must be unmarried, or a court action for divorce or legal separation must be underway between the legal parents.

Are You Looking for a Family Law Attorney You Can Trust?

The attorneys at GillespieShields are well-versed in a variety of different legal fields, ranging from family law to civil suits, employment disputes and probate cases. Although we specialize in several areas of practice, our greatest passion is family law. We believe in giving families peace of mind no matter their situation, and we fight hard to maintain that peace. Whether you’re filing for dissolution or divorce, determining custody of your children, or thinking about adopting children, our experienced attorneys are here to help you every step of the way.  During our private, one-on-one consultation, we’ll take the necessary time to answer all of our questions surrounding Arizona’s family laws, your family’s unique situation, and the possible court outcomes. Contact us today for your consultation!

Disclaimer 

The materials available on this website are for informational and entertainment purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  You should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The information presented on this website may not reflect the most current legal developments.  No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law.

Contact Us


Phoenix Location

7319 North 16th Street, Phoenix, AZ 85020 | 602-870-9700

Mesa Location

1630 S. Stapley Drive, Suite 212, Mesa, AZ 85204 | 480-985-4000

COPYRIGHT ©1985-2021 GILLESPIE SHIELDS | ALL RIGHTS RESERVED