What Determines A Court’s Decision On Child Custody?
In Arizona, custody is now referred to as “legal decision-making authority.” The law lists various factors that a judge must consider – and make specific findings about – when determining to whom to award legal decision-making authority. These factors are things such as the past, present, and potential future relationship between the parent and the child; the interaction and interrelationship of the child with the child’s parents, siblings, and others; and the child’s adjustment to home, school, and community.
Custody cases also take into consideration the wishes of the child if the child is old enough to have a say in the matter; the mental and physical health of all individuals involved; which parent is more likely to allow frequent, meaningful, and continuing contact with the other parent; whether a parent is trying to delay the process or be obstructive; whether there has been domestic violence; whether there has been coercion or duress by either parent; and whether a child has been convicted of false reporting of child abuse or neglect. Of course, there are other factors as well.
Essentially, the judge needs to consider any reasonable and relevant factor to what is in the best interest of the child. This gives the judge wide discretion. If a judge rules against you at trial, it is very hard to get the appellate courts to overturn that ruling. Appellate courts give wide discretion to the judge when it comes to awards of legal decision-making authority and parenting time. That is why it is so important to have good representation right from the beginning as it is generally hard to modify an original legal decision-making authority or parenting time order if nothing has really changed. You can’t just take another shot at it and use the same information that you used in the previous trial or hearing.
Another thing frequently seen in high-conflict cases is a custody evaluation. This is where a mental health expert does a full investigation and evaluation to determine who should have legal decision-making authority and how much parenting time each parent should have. Again, it is important to have a good attorney on your side during this process because the selection of the expert is critical. Some experts tend to be pro-mother. Others, but far fewer of them, tend to be pro-father. And then there are neutral ones, too.
It should be pointed out that there are two different kinds of legal decision-making authority. There is sole legal decision-making authority and joint legal decision-making authority. With sole legal decision-making authority, one parent gets to make all the major decisions in matters such as health, religion, education, personal care, etc., without having to discuss it with the other parent. This is becoming more of the exception than the rule nowadays.
One or two decades ago, it was rather common to see the mother have sole legal decision-making authority. Those days are gone, thankfully. The other more commonly seen form of legal decision-making authority nowadays, is joint legal decision-making authority. With joint legal decision-making authority, the parents must communicate with each other to make decisions together in those major areas such as health, religion, education, personal care, etc. With joint legal decision-making authority, one parent can’t just dictate to the other how things are going to be with the child they have in common.
Does Someone Who Has Acted In The Father Role For A Significant Period Of A Child’s Life, Have Any Rights If It Turns Out He Is Not The Biological Father?
Someone who has acted in the father role for a significant period of a child’s life may have some rights if it turns out he is not the biological father. The general rule is that if a person was like a parent to a child and it would be significantly detrimental to the child to be in the care of either of the legal parents, a judge in Arizona can actually award legal decision-making rights to that person if there was not already a custody order issued within the past year. This decision making right can also be awarded if one of the parents is deceased, the parents are not married to each other, or a divorce or separation case is pending. That’s essentially what the law says.
If the person is not trying to get legal decision-making rights, he could try to get visitation with the child, which is generally much easier to do than to obtain legal decision-making authority. The Arizona superior court is able to grant visitation rights to a third party if various things are true. One would be if one of the parents is deceased. Another would be if the child was born out of wedlock and the parents are still not married to each other. A third way is if a divorce or separation case is pending.
However, it should be kept in mind that the judge is required to give special weight to the legal parents’ opinion of what is best for their children. The judge also has to consider the strength of the relationship to the person seeking visitation rights; the motivation of that person; the motivation of anyone objecting to the visitation; the amount of time requested and its impact on the child’s schedule; and the benefits of permitting visitation if one of the parents is deceased. In other cases, the opposing grandparents could be seeking visitation rights.
Then there are also other persons, perhaps someone who was in a long-term relationship with the child’s parent, who would like to maintain a strong relationship with the child even after the romantic relationship with the parent stops. There are many other scenarios where a third party could seek visitation rights. This is a developing area of the law because of how fluid relationships have been over the past two or three decades. It is going to be increasingly common in the relatively near future to see third party visitation.
If you are Having Trouble Making Decisions Related To Child Custody, call Thomas Law Office, PLC for a consultation at (602) 466-7055 and get the information and legal answers you’re seeking.