How Arizona is Re-Thinking Custody and Parenting for Divorcing Parents


For the past two years a committee of professionals, parents and legal experts have been examining custody and parenting law in Arizona in order to make changes that address some of the major complaints about custody—decisions that favor mothers over fathers, parenting plans that do not take into account previous episodes of “intimate partner violence,” and a number of other issues that create challenges for families going through divorce.

Re-thinking the meaning of “custody.”  A significant change in the proposed rules is that the words “custody,” “joint legal or joint physical custody” no longer appear.  These words are replaced by “parenting time” and “parental decision-making.”  Here is a sample of the changes that are being proposed.

25-404 25-403. Custody Parental Decision-Making and Parenting Time; best interests of child

A. The court shall determine parental decision-making and parenting time custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:

1. The wishes of the child’s parent or parents as to parental decision-making custody.

2. The wishes of the child as to parenting time the custodian.

The proposed legislation defines parenting time and parental decision-making as follows:

4. “PARENTAL DECISION-MAKING” MEANS THE LEGAL RIGHT AND RESPONSIBILITY TO MAKE MAJOR LIFE DECISIONS AFFECTING THE HEALTH, WELFARE AND EDUCATION OF A CHILD INCLUDING, FOR EXAMPLE, SCHOOLING, RELIGION, DAY CARE, MEDICAL TREATMENT, COUNSELING, COMMITMENT TO ALTERNATIVE LONG-TERM FACILITIES, AUTHORIZING POWERS OF ATTORNEY, GRANTING OR REFUSING PARENTAL CONSENT WHERE LEGALLY REQUIRED, ENTITLEMENT TO NOTIFICATIONS FROM THIRD PARTIES ON BEHALF OF THE CHILD,EMPLOYMENT, ENLISTMENT IN THE ARMED FORCES, PASSPORTS,LICENSING AND CERTIFICATIONS, AND BLOOD DONATION. FOR PURPOSES OF INTERPRETING OR APPLYING ANY INTERNATIONAL TREATY, FEDERAL LAW, A UNIFORM CODE OR THE STATUTES OF OTHER JURISDICTIONS OF THE UNITED STATES, PARENTAL DECISIONMAKING MEANS LEGAL CUSTODY.

 5. “PARENTING TIME” MEANS A PARENT’S PHYSICAL ACCESS TO A CHILD AT SPECIFIED TIMES AND, WHILE THE CHILD REMAINS IN THAT PARENT’S CARE, PROVIDING THE CHILD WITH FOOD, CLOTHING AND SHELTER AND ACTIVELY PARTICIPATING IN THE CHILD’S ACTIVITIES IN A POSITIVE MANNER.

 Divorce and Domestic Violence.  Another significant challenge in divorce cases and in determining parental arrangements is how to handle domestic violence, particularly, how to handle “controlling behavior” or coercive violence between partners.  In the workgroup notes they state,

“This section amends the legislative policy statement concerning intimate partner violence by explicitly – and for the first time – recognizing controlling behavior as a primary motivator for classic intimate partner violence. This is important because our current law makes no effort to discern what prompted a given act of violence and what that portends for decision-making and parenting time in the future.” 

 This statement reflects an emerging understanding that not all domestic violence is the same. The changes regarding domestic violence that have been proposed in this legislation parallel the recommendations that were outlined a conference of family court judges and other professionals involved in divorce and domestic violence issues.  The final report of that conference was issued in 2007.

Below are some of the important documents about the proposed changes and the reports from committees.  You can view the current minutes and updated reports by the Domestic Relations Committee here:  http://www.azcourts.gov/cscommittees/DomesticRelationsCommittee.aspx

Minutes and Edited Drafts of the new Law, Sept 1, 2011

 http://www.azcourts.gov/Portals/74/DRC/9111MeetingMaterials.pdf

Key topics—parenting time, parenting plans, and parental decision-making, Feb 7, 2011

Drafted by Bill Fabricius and Grace Hawkins

http://www.azcourts.gov/Portals/74/DRC/9111MeetingMaterials.pdf

ARS, Title 25, Chapter 4, Article 1,

Minor Children, Parental Decision-Making, Parenting Time and Relocation, Final Committee Draft, March 4, 2011.

http://www.azcourts.gov/Portals/74/AdHocCustody/720110304UNIFIED%20DRAFTv2Atrackedchanges.pdf

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