Child Custody Q & A

 

Child Custody cases effect parents who are married, parents who have never been married (paternity cases) and parents who want to change a prior court order. At Tarascio Law Group, we handle all different types of custody and parenting time issues. This is often the most important issue in a family law case, and can be the most difficult issue to settle.

What custody options do I have?

Contrary to popular belief, there are many different options that you have regarding custody and parenting time. Such options all focus upon what is in your children’s “best interests.”

If the parents can agree upon what is in the best interests of their children between themselves, the Court will generally adopt such agreement. It is a good idea to consult with an attorney with regard to the “Parenting Plan Agreement” to make sure that you have covered all necessary terms.

What Are The Types Of Custody?

There are generally three different types of custody, although the specific terms regarding custody and parenting time options may vary depending on your personal circumstances.

  • Sole Legal Custody: This is generally where one of the parents makes all of the important decisions regarding the children (i.e. decisions regarding education, medical, religion), and where such parent has the majority of the time with the children.
  • Joint Physical Custody: This is where everything is essentially equal. Under such option, the parents would have equal time with the children (or very close to equal time). Generally the parents will make all-important decisions together (i.e. decisions regarding education, medical, religion).
  • Joint Legal Custody: This is where one of the parents may have more time with the children, but the other parent has rights with regard to decision-making. The parent with more time with the children is sometimes called the “primary residential parent”. The Parenting Plan may provide that one of the parties make the important decisions after consulting with the other parent. The Parenting Plan may provide instead that the parties make such decisions together. There are numerous options available.

What is a “Parenting Conference”?

The Court may order (but is not required to order) a Parenting Conference. The Superior Court provides certain programs to assist the Court in determining what is in the children’s best interests.

The first step in a Parenting Conference is for a mental health provider to meet with the parents and attempt to negotiate agreements. If negotiations are unsuccessful, the mental health provider will interview the parents and may then interview the children. The mental health provider may contact other persons that have a significant role in the children’s lives (i.e. teachers, etc.). The mental health provider may then provide recommendations regarding custody, parenting time and other matters to the Court. Unlike mediation, the matters addressed during Parenting Conferences are not confidential and may be addressed to the court. There is a small charge to the parties for this service. A parenting conference may not necessarily result in a custody or parenting time recommendation and may thus have limited use.

What is a Limited Family Assessment?

Private mental health specialists have recently created a less expensive and more expedient procedure for providing a tailor made assessment specifically applicable to the parenting issues involved in specific cases. Rather than conducting a full custody evaluation, which often leads to a 50 to 100 page report, a Limited Family Assessment may be a great alternative. The parties to a Limited Family Assessment agree in advance regarding the specific issues and categories that need to be addressed during the assessment. The mental health provider will thus limit the assessment to those matters that are directly relevant to the custody and parenting time issues as addressed in advance by the parties. The cost for such assessment generally ranges from $1,500.00 to $4,000.00 depending upon the extent and complexity of the issues. Sometimes the costs are divided equally or in some proportion. Other times, one of the parties is ordered to pay the entire amount.

What is a “Custody Evaluation”?

The Court may order, but is not required to order, a custody evaluation. This is where the Court assigns a private psychologist or mental health expert to determine and to provide recommendations to the Court regarding custody, parenting time and other parenting issues.

Private custody evaluations are generally more involved than Parenting Conferences and Limited Family Assessments. They often take longer than the other options. However, the mental health provider may do more as well. For example, the mental health provider (if a licensed psychologist) may provide for psychological testing of the parents. They may obtain documents from the parties and other sources (for example, prior counseling records, criminal records, etc.). They may interview the parties more often, and may interview the children more often. They may contact people involved in the childrens lives. They may also determine whether one of the parties is attempting to alienate the children against the other party.

Sometimes a Parenting Conference or a Limited Family Assessment is sufficient. Sometimes a private custody evaluation may be more helpful. Such evaluations cost generally between $4,000.00 and $6,000.00. Sometimes the costs are divided equally or in some proportion. Other times, one of the parties is ordered to pay the entire amount.

 

Can I change custody later?

A parent can request that custody or parenting time be modified. Sometimes a parent wishes a complete change in custody. Sometimes a parent just wants more parenting time with the children. You must wait one year after the last custody order to change custody unless the children are or may be endangered physically or mentally, or unless the other parent has violated the custody order. This one-year requirement may not apply to minor changes in “parenting time”.

Sometimes a change in parenting time or custody is warranted because the children want to live primarily with the other parent. Sometimes such change is warranted because of the children’s ages and changed needs. Sometimes parenting time needs to be changed because one of the parents has moved away. If the parties agree to such change, the Court will generally adopt any agreements. Again, the parents should consult with an attorney to make sure all necessary terms are covered.

 

Can I Move With The Children, Or Can the Other Parent Move With The Children?

Whether a parent can relocate with the children out of state or even to the other side of town depends upon whether such event is covered in the Court’s order and/or what is in the best interests of the children. You should always consult with an attorney before moving with the children. You should always consult with an attorney if you think that the other parent is planning to move with the children and if such move may affect your rights or your parenting time.

How Old Does A Child Have To Be Before He Or She Can Decide Who He Or She Lives With?

In Arizona, a child’s wishes can always be considered. Judges generally do not interview children although they have the discretion to do so. Judges generally prefer that a mental health expert provide information regarding the children’s wishes. Judges will sometimes allow the parents to tell the judge what the children want, however, the judge may not allow such testimony if the other parent objects.

 

What is Parenting Time?

This is the same thing as “visitation”. The Court now generally uses the term “parenting time” instead of the term “visitation” or “access”. Such terms are generally interchangeable.

What Are Guidelines for Visitation or Guidelines for Parenting Time?

Maricopa County publishes certain “guidelines” regarding parenting time. However, every case is different. These guidelines are not set in stone, nor do they state which parent (i.e. mother or father) is considered the primary parent. Rather, the Court looks at what is in the children’s best interests. Sometimes it is best that one of the parents is the primary residential parent. Sometimes it is best if the parties have equal time.

Arizona Statutes provide that the courts cannot base its custody decisions upon a parent’s gender, i.e. there is no presumption in favor of mothers or fathers.  Read more about Arizona’s Parenting Time Guidelines.

What Does The Court Look At In Determining Who Should Get Custody And How Much Parenting Time Should The Other Party Receive?

Arizona has statutes (rules) that set forth specific factors that the Court should address in deciding the best interests of the children. There are other factors, which may not be written in the statutes, but may be important. These factors include but are not limited to the following.

  • Whether either of the parties have primarily provided the care for the children in the past.
  • What the parents want and why.
  • What the children want and why.
  • How the children get along with each of the parents and others.
  • How the children are doing in each household, and how they do in school and the community.
  • Whether the parents use appropriate discipline and reinforcement.
  • The mental health of each of the parents.
  • The mental health of the children.
  • The physical health of each of the parents.
  • The physical health of the children.
  • Whether the parents have any problems which effect the children’s best interests – For example – drug use, alcohol abuse, physical abuse of the children or the other parent, and criminal history in some cases.
  • Which parent is more likely to work well with the other parent regarding parenting time and other issues.
  • If psychologists or other mental health providers have been involved, the Court will consider recommendations from such experts.
  • Whether one of the parties is attempting to alienate the children or is engaging in other inappropriate behavior.
  • Whether there are events or factors which may endanger the children.

 

What Is A Parenting Coordinator (PC) Or Family Court Advisor (FCA)?

A Parenting Coordinator is essentially the same things as a Family Court Advisor. Such terminology was changed as of January 1, 2006. Thus, any appointed professionals after January 1, 2006 are called Parenting Coordinators as opposed to Family Court Advisors.

A Parenting Coordinator (PC) is a mental health expert or other expert appointed by the Court after a final custody order is entered. A PC can meet with the parties and attempt to resolve parenting issues as they arise. Examples of such issues are numerous; i.e. where the children go to school, the effect of new significant others on the children, continued communication problems between the parents, vacation and travel disputes, enforcement of parenting time issues, inappropriate parenting complaints, and essentially any other issues that directly or indirectly involve the children. Generally, a PC attempts to guide and assist the parents in reaching an agreement on how issues are to be addressed.

The PC is much more than a mediator however. The PC has the authority to make recommendations to the Court regarding the various parenting issues. A PC can be an invaluable resource to assist parties who are unable to communicate or resolve ongoing issues.

A PC generally does not have the authority to recommend significant changes in custody or parenting time. If a party desires an expert’s input regarding significant custody or parenting time changes, a custody evaluation or Parenting Conference is generally required.

At Modern Law, we represent people dealing with child custody or visitation. To schedule an appointment with an experienced attorney or for more information, call our office 480-649-2905