What’s the difference between custody and legal decision making? I want to file a modification of custody for my child. My ex is crazy and can’t raise my child right. What can I do?

Great Question! The difference between “custody” and Legal Decision Making Authority is the first step in determining your modification question. Before, the Courts in Arizona used the term custody in discussing where a child would live the majority of his/her time. The other “non-custodial” parent had visitation. Now, the Courts have changed the term “custody” and divided it into two separate parts: 1) Legal Decision Making and 2) Parenting Time.

There are three types of Legal Decision Making Authority:

  • 1) Sole Legal Decision Making Authority
  • 2) Joint Legal Decision Making Authority and
  • 3) Joint Legal Decision Making Authority with Final Decision Making Authority.

Today let’s look at the statute (law) that the Court uses to make this determination. When determining which order is appropriate the Court looks at a number of factors that are contained within the statute below. I have included the actual text of the statute, along with a discussion in boldface, below each section/factor:

25-403. Legal decision-making; best interests of child

  1. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:

In determining which orders are appropriate the Court must make decisions based on the “best interests” of the child. This is up to the Court’s discretion and is not a black or white decision. The Court weighs the evidence and makes decisions based on what they think is best for each child. Every child and situation is different, so past rulings or past experiences of friends and family are not indicative of what is in your child’s best interest.

  1. The past, present and potential future relationship between the parent and the child.

This factor deals with the history of the parent’s relationship with the child.

Example: If one party has not been a part of the child’s life, the Court may have reservations about that parent having equal parenting time. 

If each parent has been a part of the child’s life the Court will consider this as well.

This factor also considers what is happening in the parent’s relationship with the child right now.

For example: Mother has supervised parenting time with the child due to being arrested for drug charges.

Lastly, this factor looks at what the child’s future relationship with a parent will be.

Example: Father is going to prison for two years. While this is an extreme example, it also should provide some insight on what the Court is looking for.

  1. 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.

This factor deals with everyone in each parent’s home as well as significant others. The Court looks at how the child deals with these individuals. If there is someone who is detrimental to the child or the child’s safety, this can be a major factor.

Example 1: Mom’s new boyfriend is a sex offender.

Example 2: Mom’s new husband has six other children that live in the home.

This is a very important factor that can greatly impact the Court’s final orders.

  1. The child’s adjustment to home, school and community.

The Court is most concerned with the child’s comfort level in each parent’s home, his/her current school and the communities in which each parent lives. Courts will look into how the child is doing scholastically and socially and how the current plan is affecting the child.

  1. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

The older the child is, the more weight the Court generally will give his/her opinion. This is not a “smoking gun,” however. The Court will consider the child’s opinion. This does not mean that your nine (9) year old can pick where he/she lives. This is just one factor among many.

(Next: I will consider our examination of §25-403 in Part 2 of this Article.)

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