How is Child Custody Decided?

Determining child custody is the most important and challenging aspect of separating or divorcing parents. Child custody refers to the parent’s rights and responsibilities regarding the care of their children. Both parents often have different opinions on what is best for their children regarding custody and visitation. When children are old enough, they may also have opinions about where to live following a divorce.

Judges in many states, including Arizona, must consider the child’s preference, but that’s only one factor. An explanation of how child custody is determined in Arizona is provided below. If you have additional questions about the impact of a child’s custodial preference in Yavapai County, please get in touch with your Prescott divorce attorney, Stephanie Willison, today.

How is Child Custody Decided, Prescott, AZ

An Overview of Arizona’s Custody Decisions
When parents cannot agree on custody arrangements for their children, the court will decide. There are several factors that Arizona judges must consider when determining custody, including:

  • Relationships between parents and child in the past, present, and future.
  • The child’s relationships with their parents, siblings, and anyone else who can a
    ffect their well-being.
  • A child’s adjustment to home, school, and community.
  • Mental and physical health of the child and parents.
  • Which parent is more likely to encourage the child’s relationship with the other parent?
  • Whether either parent has abused their child or committed domestic violence.
  • A parent’s intent to mislead the court or make a false report about child abuse or neglect will be considered.
  • If the child is of appropriate age and maturity, the child’s wishes can be considered.

A judge must state in a final order the factors he or she considered in determining custody. The court must consider the child’s preference if it meets the requirements, but it can follow the child’s preference only if it is in the child’s best interest. Child custody can be an emotional experience. Hiring a family law attorney in Prescott, Arizona, can help guide you through the entire custody process.

The Court’s Process for Considering a Child’s Preferences
According to Arizona law, when a child is of sufficient age to form an intelligent preference, the court will consider his or her opinion on custody. Arizona does not have a specific age at which the court must consider the child’s preference, so judges must determine each case on a case-by-case basis.

To be considered by the court, a child’s preference must be intelligent, which means it can’t be based on something trivial like which parent’s house has better toys or which parent lets the child choose meal ingredients. Judges consider whether a child’s preference should influence custody decisions by looking at whether the reasoning stems from a permanent place, such as having a closer relationship with one parent than the other, and not something that will change at any time.

The court must also consider whether either parent coerced or pressured the child into expressing an opinion. When either parent appears to have coached the child before the interview, courts hesitate to consider the child’s custodial preference. Arizona doesn’t prioritize a child’s preference over other custody factors. High emotions can tend to cause parents to coerce their children. Your family law attorney in Prescott is there to ensure you follow this rule appropriately.

Types of Custody in Arizona
It is common for the child to live with the parent who has custody most of the time, referred to as the “custodial parent.” Parenting time (also called visitation) refers to the opportunity for the child to spend time with the parent who does not have custody, called the “non-custodial parent.”  If the parties have equal parenting time, they are both custodial parents.

Legal Custody – Legal Decision Making
Parental or guardian legal custody refers to the right to make major life decisions such as schooling, medical decisions, and religious upbringing. This is typically done on a joint basis. However, when legal custody is awarded to only one parent, it is called “sole legal decision-making.”

Sole Legal Decision-Making
A court orders one parent to make the major decisions regarding the child’s care or welfare in this situation. Regardless of whether the parents discuss these matters between themselves, the parent with sole custody is the one deemed by the court to have the legal authority to make final decisions.

Joint Legal Decision-Making
In joint legal decision-making, both parents have equal rights to make decisions about the child’s care and welfare, and neither parent’s decision-making authority is superior to the other’s. In certain cases, however, the court may direct decisions only by one parent, even if they possess joint legal custody. It is also important to note that the court can sometimes order joint legal decision-making, even if one parent objects.

Parents can agree to and submit a parenting plan to the court indicating how they will raise and care for the child together. Parenting plans generally include the following:

  • As children grow, their needs change.
  • A child’s official records are accessible to both parents.
  • A child’s best interest is served by maintaining the parent-child relationship.
  • While the child is in their custody, the custodial parents make daily decisions (including emergencies).
  • A schedule for the regular weekend and weekday parenting time.
  • The method and frequency of communication between the parents and the parents and child.

The child’s birthdays and other holidays, transportation arrangements, scenarios where supervision is necessary, and other relevant details are also included in parenting plans.

Essentially, equal parenting time means that the child lives in both parents’ homes (physical residences) so that both parents can spend time with the child.

A Change in An Order
If a custody order needs to be modified, either parent may submit a written request to the court. A parent must show that they are considering the best interests of the child when changing an existing order. Suppose it has been less than one year since the previous order. In that case, you cannot file a modification request unless special circumstances seriously endanger the child’s physical, mental, or emotional well-being.

The court may modify a joint custody order at any time if there has been evidence of domestic violence, spousal abuse, or child abuse since the last order. If one parent has failed to follow the court’s custody order, a parent must wait six months before requesting a modification in a joint custody situation.

Child Custody Factors to Consider When Mediating
The court may order the parents to participate in mediation if they are unable to reach an agreement regarding legal decision-making or parenting time for their children. Suppose the parents cannot resolve their differences through mediation. In that case, the court may appoint a third party, such as a psychologist who has worked with divided families, to review the case and provide an expert opinion on custody and parental access.

All child custody decisions will be based on the following factors:

  • The child’s relationship with each parent. The quality of the child’s relationship with their parents is extremely important for the Arizona court. For example, if the child has a tough time living with the mother, the decision will probably favor the father.
  • How much each parent contributes to the child’s needs. In Arizona, both parents must contribute equally to the child’s financial needs, but the court also considers the child’s emotional and physical needs. Parents must demonstrate that they have the financial means to pay for basic needs and are emotionally available to one another.
  • The child’s comfort level in each potential living situation. The courts will consider prioritizing the parent whose living situation is more familiar and comfortable if the child cannot adjust to a new neighborhood or school. It can be challenging for children to leave behind strong relationships when they are uprooted from their community.
  • A parent’s previous abuse or neglect of the child. A court will prioritize the child’s safety when creating a parenting plan if there is evidence the child was physically, sexually, emotionally, or verbally abused or neglected by a parent.
  • Parent and child’s overall health. A parent must be in good physical and mental health to provide for their child. In the custody plan, the court will not prioritize a parent who is mentally incapable of providing physical and mental support for the child. Nonetheless, it is important to note that disabilities like immobility cannot be used to discriminate against a parent.

Arizona Family Court Process: 7 Steps to Custody
To protect your child’s interests, hiring a lawyer to develop a legal strategy, completing and filing paperwork, and negotiating with the other parent can be helpful. Mediation or collaborative law may help you and the other parent settle before opening a case, which expedites the court process.

Step 1: Opening a case
Informally called family court, either parent can file paperwork to open a case with the family division of the Superior Court in their county. The divorce or legal separation of married parents will result in a parenting plan and a child support order. A spouse must have lived in Arizona for at least 90 days. Hiring a divorce attorney in Prescott, Arizona, to open the case for you takes the stress off of you and ensures you are doing things correctly.

Unmarried parents can request parenting plans, child support, and paternity testing. In the absence of a marriage, there is no residency requirement. The parent who files is known as the petitioner, and the other parent is known as the respondent. The two may be referred to as litigants.

Step 2: Serving the other parent
You must serve a formal notification to the other parent. If they’re served in person or by mail, they have 20 or 25 days to respond. If the other parent files a response that agrees with everything you requested, your case becomes uncontested and moves to settlement.

You will continue with the steps below if the respondent disagrees with anything in your case. You may submit a default judgment to the court if the other parent does not respond by the deadline.

Step 3: Parenting class
Arizona requires all parents involved in custody cases to take a parenting class. It provides information on divorce and separation’s effects on children and parents and is offered by your county’s Conciliation Court and certified private agencies.
A minimum two-hour course must be taken by both parents (in person or online) within 45 days of opening the case. Class fees are limited to $50 per person. The judge will not issue final orders if a parent fails to complete the course.

Conciliation Court is Possible (married parents only)
The Conciliation Court helps married couples avoid divorce, among other services. A spouse can petition for conciliation services at any time before a divorce or legal separation case is filed. Both spouses have 60 days to seek conciliation after opening a divorce or separation case.

A request for services places the case on hold for at least 60 days while the spouses seek reconciliation with a free marriage counselor. If spouses cannot reconcile, the following steps will be taken.

A Temporary Orders Hearing is Possible
The court holds a hearing if either parent requests temporary orders so that both can present evidence and argue their case. Parenting plans, parenting time schedules, and child support arrangements might all be included in temporary orders.

It is typical for them to remain in effect until a final order is issued. Parents do not need to seek temporary orders from the court if they can agree on how to manage legal decision-making and parenting time during their case.

Step 4: Resolution management conferences
A resolution management conference aims to discuss disputed issues, settling options, and next steps with a judge or family law facilitator. Most courts hold a resolution management conference early in the litigation process.

A judge may schedule an Early Resolution Conference within a month of a family case beginning. This is done by judges to gain a better understanding of the case’s management early on.

To be prepared for that hearing, you need to understand what happens at a Resolution Management Conference. There is no such thing as a typical divorce or family case. Depending on the circumstances, a family court case may be simple or complex. By contacting a professional in family law in Prescott, Arizona, you will be better prepared for the hearing and in a better state of mind as a parent.

Step 5: Discovery and Disclosure
The discovery process involves both parents exchanging information and preparing evidence. A contested response is filed by a parent and continues until the final weeks before trial, often ramped up after a resolution conference.

Defying your court’s discovery requirements can negatively affect your case and be considered contempt.

Evaluations, parenting conferences, or court-appointed advisors are all possible.
A custody expert can gather information about your family through an evaluation, parenting conference, or court-appointed advisor.

By interviewing and reviewing family records, the professional determines what is in the children’s best interest and writes a report for the judge and both parents. In addition to recommendations for a parenting plan and parenting schedule, the report includes suggestions for other possible requirements (e.g., counseling or substance abuse treatment). A child’s reasonable custody preference is also considered.

When judges make decisions, they give great weight to recommendations, even if they do not automatically order everything in them.

Step 6: Mediation
Before requesting a trial, Yavapai County requires parents to attempt mediation (except in cases of domestic violence). At any time during the litigation process, parents can request mediation services. Mediation allows you and the other parent to settle on a parenting plan, schedule, etc., with the help of an expert in dispute resolution and family law. There is no requirement for you to settle your case, but it is strongly recommended.

Step 7: Trial
Any issues that the parents cannot agree on are decided by the judge in a trial. To support their requests for legal decision-making, parenting time, child support, and more, both parents (or their divorce lawyers in Prescott, AZ) present evidence and question witnesses at the trial.

Judges consider the arguments and evidence of parents as well as any reports and recommendations. Some judges announce their decisions immediately, but others call a recess (a break) for hours, days, or even weeks in complex cases.

All custody cases result in parenting plans with parenting time schedules, and divorce cases result in divorce decrees. Separate orders are made for child support.

What are the benefits of legal representation?
A strong defense requires legal counsel if your case goes to trial. When you hire a family law attorney in Prescott, the process goes faster, and you have a greater chance of achieving the outcome you desire. Your attorney is responsible for investigating the evidence against you, interviewing witnesses, and building a case that supports your defense. Furthermore, they have the right to cross-examine witnesses and challenge evidence presented by the prosecution.

Understanding the laws and factors that affect custody decisions is vital in a child custody battle. Children must be cared for when parents separate or divorce. The court will order a plan for raising the children if the parents cannot agree on one.

Having a well-crafted parenting plan is crucial to securing a favorable custody arrangement. The court’s primary concern is the child’s best interests. Focusing on their well-being throughout the process will allow you to navigate child custody battles more effectively and provide them with a nurturing and stable environment.

If you or your spouse are considering divorce, now is the time to contact a divorce lawyer in Prescott, Arizona. We at Willison Law understand the challenges you may encounter and are ready to provide you with the legal advice you need. Contact Stephanie Willison today by clicking to call or fill out our online contact form to schedule a consultation.


Willison Law, PC

Willison Law, PC

New clients click here to make an appointment.