Understanding Child
Custody
(Copyright © 2003 by
Louis Lombardo.)
One of the most
misunderstood concepts in Arizona family law is "custody" of children. As a
family law attorney, I have often found myself explaining to parents that the
legal definition of custody differs from their understanding of the word. This
article will help you understand exactly what it means to have legal custody of
a child, how a court determines which parent should have custody, and how
custody can change as a child grows.
The first thing parents must understand is that the term "legal custody" refers
to decision making on behalf of a child, and has nothing to do with which parent
has the child in his or her physical possession. When I speak of decision
making, I refer to those major decisions in a child’s life, such as which
religion a child will be taught, who will be the child’s pediatrician, whether a
child will have elective surgery, which school a child will attend, and so
forth. Day to day decisions, such as how long a child may watch television or
which clothes the child may wear, are usually not the subject of a custody
order. Parents who argue over which brand of cereal a child may eat are strongly
advised not to bring the matter to a judge for resolution.
There are two types of
custody arrangements in Arizona: Joint custody and sole custody. When parents
have joint custody of a child, they must discuss any major decision regarding a
child’s health, welfare and education, and must make the final decision together
before one parent may act. If parents with joint custody cannot agree, they must
appeal to a third party, such as a counselor, mediator or judge, to help them
reach a decision. Under most circumstances, a parent who has sole custody of a
child should also discuss major decisions with the child’s other parent. If the
parents cannot agree, however, the parent with sole custody has the final say.
Most parents want to do
what is best for their child. Unfortunately, not every parent has the experience
or knowledge to recognize what is in their child’s best interest. Some parents
may have raised a half dozen children, but cannot communicate with their spouse
or significant other out of anger or fear. Some parents are addicted to drugs or
alcohol and are simply incapable of acting in their child’s best interest. When
parents go to court and argue over custody, the court must consider these
realities and attempt to determine if a joint or sole custody arrangement is in
the best interest of the child.
Generally, the court
will consider all of the following factors in its effort to determine what
custody arrangement is in the best interests of the child: (1) The wishes of the
child's parent or parents as to custody; (2) The wishes of the child as to the
custodian; (3) The interaction and interrelationship of the child with the
child's parent or parents, the child's siblings and any other person who may
significantly affect the child's best interest; (4) The child's adjustment to
home, school and community; (5) The mental and physical health of all
individuals involved; (6) Which parent is more likely to allow the child
frequent and meaningful continuing contact with the other parent; (7) If one
parent, both parents or neither parent has provided primary care of the child;
(8) The nature and extent of coercion or duress used by a parent in obtaining an
agreement regarding custody; (9) Whether a parent has participated in the
mandatory parent information program class; (10) Whether there has been domestic
violence in the marriage or against the child, and; (11) Drug or alcohol abuse
by a parent.
As mentioned above,
whether a parent has joint or sole custody has nothing to do with how often that
parent spends time with his or her child. Parenting time with a child is
determined separately from custody. A parent who has joint custody might only
see his or her child for a few hours a week, while a parent with sole custody
might have to turn the child over to the other parent every other day. When and
how often each parent will spend time with a child is determined based on a
number of factors, with the primary one being the child’s age. Arizona has
recently adopted a set of Model Parenting Time Plans for the Arizona courts to
use when making parenting time orders. These guidelines can be found on the
internet at the Arizona Supreme Court’s website, http://www.supreme.state.az.us.
Parents should remember that these guidelines are not binding on the court. In
other words, only the judge assigned to your case has the final say on the
parenting time arrangements, and the judge may or may not choose to follow the
guidelines.
One of the main reasons
why parents have a hard time understanding the concept of "custody" arises from
the application of different (and often misleading) labels used to identify
which parent has the child more often in his or her physical care. For example,
you may hear of someone being referred to as the custodial parent or
non-custodial parent. Based on the information I gave you at the beginning of
this article, you might expect that these terms refer to who has sole custody.
In reality, the person with whom the child spends most of their time is often
called the custodial parent. The non-custodial parent may also have regular
parenting time with the child, but not as often as the custodial parent. A
better label for the person who has the child in his or her care more often than
the other parent is "primary residential parent" or "primary caretaking parent."
Another confusing term
is "physical custody," which refers to parenting time and not decision making.
"Shared custody" is another misleading term. Sometimes it refers to joint legal
custody, and sometimes to a parenting time arrangement where the parents have
equal time with the child. Remember, regardless of the term others may use, the
court only recognizes two terms, joint and sole, when referring to custody.
Parents may find that it
is necessary to request a modification of the custody order or parenting time
arrangements at some future date. The Arizona court always has the authority to
modify orders relating to child custody if the court finds that a modification
is in the best interests of the child. Before the court will consider changing
the current custody arrangement, however, the parent seeking the change must
show that there has been a substantial and continuing change of circumstance
that somehow has had an adverse effect on the child. Typically, the court will
find such a change of circumstance if one parent moves a considerable distance
away, remarries, begins abusing drugs/alcohol, continually interferes with the
other parent’s visitation, and the like.
I strongly encourage
parents with child custody or support issues to contact a competent attorney to discuss
their particular concerns. Only the court has the authority to make a final
determination of your legal rights and responsibilities, and only an attorney is
qualified to give you legal advice.
___________________________________
Louis Lombardo was admitted to the Arizona State Bar Association in 1995 and has
practiced primarily in the area of family law for more than seven years. Mr.
Lombardo attended the University of Missouri-Columbia (B.A. 1988, M.A. 1991) and
Arizona State University College of Law (J.D. 1995). His achievements include
membership in Phi Beta Kappa and former appointment as an editor of the Arizona
State Law Journal.
Law Office of Louis Lombardo, PC
700 E. Baseline Rd., Ste. D-3
Tempe, AZ 85283
(480) 413-9300
www.azdivorceattorney.com
