Equal Access To The Law - Child Custody Library - Low Cost Mistake-Free Legal Document Preparation

Introduction

Equal Access provides this Child Custody Library as a courtesy to anyone who is going through a custody dispute. This library will provide general information and answers to commonly asked questions relating to child custody. It is our hope that you will find the information contained in this library useful when making decisions relating to your situation.

There is probably nothing more emotionally charged, or where parents become more emotionally invested, than the issue of child custody and visitation. This is a very rough time for parents, because each parent is trying to fight for their rights when it comes to the custody and/or visitation of their children. Equal Access understands this, and will walk you through this emotional process with our helping hand. We have been assisting our clients for many years (whether your are the mother or the father) with preparing them to fight for their child custody and visitation rights.

The Basics of Child Custody

Child Custody refers to the rights and relationships between the parents and the children after the divorce is final. In accordance with A.R.S. 25-403, the court can order Sole Custody or Joint Custody. (Child Support and Child Custody are two different and separate issues).

A child is easily the most vulnerable person involved throughout the emotional side of divorce. Although the prospect might sometimes be tempting, a parent should never ever use the child as a bargaining tool during the sometimes difficult negotiations. If the child becomes a pawn in this game of emotional chess, alterations must be made before situations become irreversible.

Unfortunately, our legal system today still has a tendency to treat a child as a piece of property. As divorce has become more commonplace in contemporary society, consideration for the child's well being has merited much greater significance. Still, by no means has the judicial system completely solved this dilemma, which is why experts agree the best resolution concerning child related issues is usually an agreement struck out of court between the divorcing parties.

There are many different types of child custody agreements that can be decided with or without the help of the court, but one must always remember the main objective is to reach the arrangement that is best suited for the child.

These basic facts should be kept in mind when reading through our Child Custody Library:

The court makes the final decision, thus assumes full responsibility in order to permanently safeguard the child against acute or chronic feelings of guilt.
The court will consider the child's wishes differently according to his or her age.
In a situation involving more than one child, experts feel that it is usually best to keep all siblings together with respect to the custody arrangements.
Divorce splits the bond of husband and wife, and custody splits the bond of parenting.
A custody dispute is more likely to be more difficult than the divorce itself, because the bond of parenting is typically stronger than that of marriage.
Most importantly, each and every family is unique, with very distinctive needs and desires that must be kept at the forefront of any and all considerations.

Best Interest of the Child

The court is customarily charged with determining what is in the best interest of the child. In a contest between two parents, the outcome determinative question is whether it is in the best interest of the child to be placed with mom, or with dad primarily, and what contact the child should have with teh non-primary custodial parent.

In reaching its first custody order, generally the court will first consider the status quo. If the wheel is not broken, there will be little reason to fix it. For this reason it is important to establish a pattern of parenting and child sharing consistent with that which you, as buffered by the other parent, determine and ascertain what is in the child's best interest.

The court will generally assume that the pattern of conduct and sharing entertained and practiced by the parents prior to filing for divorce or for child custody is at least a valid starting point. Although the pattern previously established may not be perfect, and may need adjustment, the court feels safe in adopting that plan because it is a plan which the parents have tacitly, if not expressly, previous agreed upon.

Physical vs. Legal Custody

Physical custody refers to that parent or parents who has the physical responsibility for the care of the child. Joint "physical custody" means that each of the parents shall have significant periods of physical custody, although parents can share joint custody even if the timeshares are disproportionate, such as an alternate weekend schedule for one parent and the other parent having the rest of the time. If the order does not specify joint physical custody, the parent who does not have primary physical custody is usually granted "secondary physical custody" or visitation rights.

Sole physical custody means that one parent clearly has the lions share of time, as well as usually all the responsibility. Most cases avoid the use of either sole or joint custody and use the term "primary physical custody" to designate the parent who has day-to day care of the child. Arizona law does not have any designation known as primary physical custody, and this may cause problems under certain circumstances, such as in a move-away case.

The parent that does not have primary physical custody will usually have specified periods of time (either agreed to at a Mediation/Conciliation Court or ordered by the court) consisting of alternating weekends, one evening per night and one-half of the children's school vacations.

Legal Custody refers to the parent/s who will have the decision-making authority relating to the health, education, and welfare of a child. Joint legal custody means that both parents have the authority to make decisions regarding the child’s health, education, welfare, religion, drivers license, etc. Sole legal custody means that one parent may make all of these decisions. In Arizona, most parents are awarded Joint Legal Custody.

Child Visitation

When one parent is awarded primary physical custody of the child, the other parent is granted the right of visitation. Visitation plays a role in almost all custody arrangements unless deemed not in "a child's best interest."

The guidelines for visitation should be agreed upon promptly to prevent any future misunderstandings. It is the responsibility of the parents to arrange for a reasonable schedule of visitation. Failure to do so in a timely manner will force the court to assume complete control. This discussion should be approached by both parents openly, in order to thoroughly address the central issues of when, where, and for how long.

It is typically important to always bear in mind that the child has a right to maintain an ongoing relationship with both parents. Once arrangements have been made, they should not be deliberately interfered with or ignored.

It is the responsibility of the custodial parent to prepare the child for the first visitation. The visits are normally non-supervised and occur at the non-custodial parent's residence.

Visitation patterns that evolve throughout and after the final divorce or child custody hearing typically reflect status quo at the time the visitation orders were issued.

For a chart on Child Visitation Percentages>>>

Mediation/Conciliation Court

The law provides that before a judge can make any decisions concerning child custody or visitation, the parties and children must first participate in a counseling session with a court mediator. This is not actually a court, but a licensed marriage and family counselor whose only job is to help parents work out agreements concerning custody and visitation without involving the judge.

The counselor usually begins by meeting with both parents together. After this initial meeting, one of the parents is asked to leave the room so that the counselor can talk to the one parent separately. When this individual meeting is over, the counselor then talks separately with the other parent. There may be additional separate and joint meetings, and the counselor might want to talk to the children.

If the parents are able to agree on some or all of the disputed child custody and visitation issues, the counselor will prepare a written agreement, which the parents are asked to sign. This agreement is then forwarded to the judge, who confirms it as a court order.

There are several things that you should know about the mediation process.

If you believe your spouse poses a threat to you, advise the mediation office ahead of time. Where there is a history of domestic violence, the law provides that the mediator must schedule separate sessions for the parents.
Do not bring your children to the mediation sessions, unless you are requested to do so by the counselor. If you are requested to bring the children with you, have another adult come with you so that you will have someone to watch the children while you and your spouse are jointly meeting with the counselor.
Before the mediation session, make notes about the things that you want to discuss, and be sure to bring your notes with you to the mediation session.
If you and your spouse work out any agreements, immediately mail or deliver a copy of your agreement to our office. After a mediation session, either party can rescind the agreement, but this usually has to be done within ten (10) days after the agreement is signed.
Attorneys, if you have one, usually do not participate in the mediation process. So, if either side is represented by an attorney, they are not allowed to participate in the process unless the counselor requests their presence.
You should participate in the mediation process with an open mind and with the realization that a considerable amount of time, money and emotional strain can be saved if you and your spouse can amicably resolve your child custody and visitation disputes without having to go to trial. On the other hand, you should enter into a full or partial agreement with your spouse only if you honestly believe the agreement is fair and reasonable and is in your children's best interests. You should not allow yourself to be pressured or browbeaten into signing an agreement, either by the counselor or your spouse.
The law gives the judge the power to assess monetary penalties against a parent who fails to come to a scheduled mediation session. So, if you find that you cannot make the scheduled meeting, you must call the Conciliation Court or Mediation Services office immediately.

Modification of Existing Orders

Under Arizona Law, certain orders may be modified after a final judgment has been made. It is commonplace for the parties to seek and obtain post-judgment modifications of their child custody and/or visitation orders.

Child custody and visitation orders are generally modifiable whenever the court finds a modification is "necessary or proper" and in the child's best interests. Typically, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification.

Child Abductions

A child abduction occurs when someone takes, entices away, keeps, withholds or conceals a child in violation of a custody or visitation order. A child can be abducted by a member of his or her own family. Not only does child abduction involve violation of Family Court, Juvenile Court and/or Probate Court orders, but it also involves a FELONY violation of the law. The punishment for committing such a crime can can mean a long prison term and large fines, even if the abductor is a family member!

A child may be taken or detained in violation of a custody or visitation order if there is a good faith and reasonable belief that the child(ren), if left with another person, will suffer immediate bodily injury or emotional harm. However, if you do take your child(ren) under this exception, you MUST call the District Attorney's Office Child Abduction Unit.

If your child has been abducted, call the police and file a report immediately. They will require that you have certified copies of your most recent court orders regarding custody. Also, ask the law enforcement agency to place your child in NCIC, the National Crime Information Computer System. Immediately notify the District Attorney's Office Child Abduction Unit of your county.

For additional assistance, you may wish to contact the "National Center for Missing and Exploited Children" at their hotline # 1-800-THE-LOST

DISCLAIMER: The law is subject to change. The information contained here is not to be substituted for legal advice and is for informational purposes only.

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