When parents separate or divorce, they must decide on care for their child, such as how much time the child will spend with each parent and which parent will be the primary caregiver. In situations where they cannot reach an agreement, they may ask the court to decide custody or parenting time, which the court determine based on the child's best interests. In today’s blog, we will discuss the four different types of custody options available to parents in Arizona, as well as how you might go about modifying a former court order.
4 Types of Custody in Arizona
Recall that custody is a legal term referring to a person’s right to make decisions about the care and welfare of a child (e.g. decisions about education, health care, religious training). The parent with custody is often called the "custodial parent," and in many cases, the child lives with the custodial parent most of the time. 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."
Physical Custody and Legal Custody
In Arizona, physical custody refers to which parent or guardian the child physically lives with. Legal custody refers to the right of a parent or guardian to make major life decisions, such as schooling and religious upbringing. When legal custody is awarded to only one parent, it is called "sole legal custody."
Sole custody means that one parent has sole legal custody of a child, and the child lives with one parent full-time, even if the non-custodial parent has visitation rights or shares in the legal custody agreement. In this situation, the court orders that one parent be responsible for making the major decisions regarding the child’s care or welfare. Although both parents may discuss these matters between them, the parent deemed by the court to have the legal authority to make final decisions is the parent with sole custody.
With joint custody, both parents have legal and/or physical custody. Within the category of joint custody, parents may seek either joint legal custody or joint physical custody. Under a joint legal custody arrangement, the court allows each of the parents the same rights to make decisions about the child’s care and welfare, and neither parent’s decision-making power is superior to the other’s. However, if the court deems it in the best interest of the child, the court may direct that certain decisions be made by only one parent, even if they possess joint legal custody. Further, note that in some cases the court may order joint legal custody even if one parent objects, if it is in the best interests of the child.
In order to obtain an order for joint custody, both parents must agree to and submit a written parenting plan to the court indicating how they will cooperate to raise and care for the child. A parenting plan generally establishes the following:
- the needs of children change and grow as they mature;
- both parents have access to a child's official records;
- the continuity of the parent-child relationship is in the child's best interest;
- custodial parents make daily decisions (including emergencies) while the child is in their custody.
Parenting plans also lay out how children will spend birthdays and other holidays, their transportation arrangements, scenarios when supervision is required, and other relevant considerations.
When the court grants joint physical custody, the home where the child lives (physical residence) is shared between the parents in such a way that the child will have essentially equal time and contact with both parents. Joint physical custody may be granted in situations where parents share joint legal custody or when one parent is granted sole custody.
Modifying an Order
To modify a custody order, either parent may send a written request to the court. To change an existing order, the parents must show that the best interests of the child are being considered. There are limitations on requesting a modification, though, such as not being allowed to file a request if it is 1 year from the date of the earlier order, unless there are special circumstances seriously endangering the child's physical, mental, or emotional health.
Note that if a form of joint custody has been ordered, a modification may be requested at any time if there is evidence that domestic violence, spousal abuse, or child abuse has occurred since the last order was granted. In a joint custody situation, a parent must wait 6 months before seeking a modification if the reason for the request is that one parent has failed to obey the court's custody order.
Facing a Custody Battle? Let Us Help.
Whether you are in the midst of a custody battle or seek to modify your custody arrangement, contact an experienced lawyer for legal counsel in your case immediately. Our attorneys at Bowman, Smith & Kallen, P.L.L.C. can examine the facts of your divorce or separation case in light of your child. It is critical to have legal support during a process that involves your relationship with your child and their wellbeing.
Speak with one of our attorneys at Bowman, Smith & Kallen, P.L.L.C. to schedule a free consultation today.