The fact is—it doesn’t. That’s because changes to Arizona’s domestic relations law in 2013 eliminated the word “custody.” Although the statute no longer references the older, more familiar terms of "legal custody" and "physical custody," that doesn't mean the underlying concept disappeared as well.
The law replaced the term “legal custody” with “legal decision-making.” The words may have changed, but the substance is virtually the same. It refers to the legal right and responsibility to make non-emergency legal decisions for a child, as to issues such as education, health care, religious training, and personal care.
Arizona law divides “legal decision-making” into two sub-categories: “joint” legal decision-making and “sole” legal decision-making. With joint legal decision-making, both parents share the authority to make the major decisions for their children. Sole legal decision-making means only one parent has that right. Ordinarily, joint decision-making authority is the preferred outcome at the end of a case.
Note that joint legal decision-making doesn’t necessarily mean both parents get an equal say in every decision. The parents may agree, or a judge may determine, that one parent should have the final word in a particular area of the child’s life. For example, perhaps one parent will make the educational decisions, and the other will determine religious upbringing.
The section of the Arizona law that defines the new language for what was once “legal custody” doesn’t provide terminology for what used to be known as “physical custody” (the determination of where a child is going to live). But although the concept isn’t specifically defined, the issue of the child’s living arrangements is still a viable one, and courts will have to address it if the parents can’t resolve it themselves.
There are normally a number of options as to where the child will reside. If the court awards a parent sole legal decision-making, it’s likely that this parent’s home will be the child’s primary residence. A joint legal decision-making scenario holds the prospect of the child possibly residing with each parent for a certain period. The range might be anywhere from a few days a week to several months a year.
Be aware that if the parents live far away from each other, having the child change residences during the course of the year could be problematic, particularly if the child is of school-age. A court might be reluctant to constantly uproot a child if switching residences will negatively impact the child’s education or social activities, such as sports or extracurricular activities, like music lessons.
In Arizona, as in all states, when making a decision regarding children, a judge’s primary concern is “the best interests of the child.” This applies to determining legal decision-making and parenting time (the time each parent has access to the child). Some of the factors a judge considers are:
There are certain situations which, on their face, would not be in a child’s best interest, and would lead a court to deny a parent any legal decision-making. Some examples are:
In most states, the terms “parenting time” and “visitation” are basically interchangeable. But in Arizona, “parenting time” is literal, in that it specifically refers to the scheduled time during which a parent has access to the child. “Visitation” relates to the scheduled time a third-party—such as a grandparent—spends with the child.
Every parent is entitled to parenting time unless, after a court hearing, a judge decides that parenting time would endanger the child's physical, mental, moral, or emotional health. Usually, there’s no one-size-fits-all parenting time arrangement. One that reasonably accommodates the parents’ and the children’s schedules typically works best.
If the court determines that being alone with a parent could endanger the child, the judge can order “supervised” parenting time. In these situations, the parental visits will take place in the presence of a third party, usually trained personnel of a state-approved agency. However, the court could allow a family member or friend to oversee visitation under certain circumstances.
Yes. However, the law states you can’t petition the court for a modification of the order earlier than one year after the date of the order, unless the court permits it based on affidavits (sworn written statements) that there’s reason to believe the child's present environment may seriously endanger the child's physical, mental, moral, or emotional health.
To learn more about the complex issues of custody and parenting time, consult with a knowledgeable divorce lawyer.