AZ Custody (Legal Decision-Making) and Parenting Time
Arizona has replaced the term custody with legal decision-making authority. The terms physical custody and visitation have been replaced with parenting time. However, you'll still hear the old terms in informal situations.
The courts prefer parents to agree on orders for legal decision-making and parenting time in a settlement. Many parents use mediation or other alternative dispute resolution methods to reach an agreement. When parents can't agree, a judge decides in a trial.
When approving settlements and deciding decision-making and parenting time in a trial, the court emphasizes the importance of maintaining children's relationships with each parent, when appropriate.
Bring calm to co‑parenting. Agree on a schedule and plan. Be prepared with everything documented.
Legal decision-making authority
Legal decision-making authority describes parents' rights to make decisions regarding their children's health, education, activities, religious participation, overall upbringing and welfare. The details of parents' legal decision-making arrangement are explained in a parenting plan.
The most common arrangement is joint legal decision-making authority (formerly called joint legal custody). Parents have equal decision-making powers and work together to make decisions about their children. Often, a parent may have final decision-making authority on all or specific issues for when they can't agree.
In sole legal decision-making (sole legal custody), one parent makes all decisions without the other parent's input. Typically, the court orders this when a parent poses a safety risk to the children due to domestic violence, child abuse, substance use or mental health issues.
A parent can choose to give the other parent sole decision-making authority (but this doesn't eliminate their child support obligation).
A parenting time schedule, part of a parenting plan, details when children live and spend time with each parent.
When possible, the court prefers joint parenting time, in which parents share time as equally as possible. (Parents with this arrangement usually share joint legal decision-making too.)
However, it's common for children to live with one parent more than the other, e.g., in a 60/40, 70/30 or 80/20 split. The parent with more time is sometimes called the primary residential parent, and the other parent is referred to as the nonresidential parent. (These parents often still share legal decision-making.)
When a parent poses a risk to children's safety — like in cases involving child abuse, domestic violence or substance use — the court can give the other parent majority parenting time (sole physical custody). The parent who poses a risk is often given supervised parenting time.
Divorce cases automatically include a child support order. Unmarried parents can include child support in a legal decision-making and parenting time case or get an order for child support only.
Which parent pays child support, and how much, depends on the parenting time schedule, both parents' incomes and how much each spends on certain child rearing costs. Parents' genders aren't a factor.
Getting court orders
Either parent can request court orders for legal decision-making, parenting time and child support from the family law division of their county's Superior Court. Unmarried parents who only need a child support order can use Child Support Services instead.
Married parents with children under 18 are required to address legal decision-making, parenting time and child support in their divorce or legal separation case.
When parents aren't married to each other, the mother has all legal decision-making authority and controls parenting time until the court issues orders in a custody case at the request of either parent. (See paternity info below.)
When parents agree on all of the issues in their case, their case is uncontested and they submit a settlement agreement for a judge's approval.
When parents disagree, their case is contested. To encourage parents to settle, most courts refer contested cases to mediation (unless a case involves domestic violence).
For unmarried parents, paternity confirmation is required for legal decision-making, parenting time and child support orders.
If both parents signed the child's birth certificate, this confirms paternity. Alternatively, parents can sign the Acknowledgement of Paternity form in front of a notary. DNA tests from a certified lab with results of at least 95 percent probability also legally establish paternity in Arizona.
When a parent doesn't agree to voluntarily establish paternity, either can request a court order for DNA testing.
Once paternity is established, the court gives equal consideration to each parent's ability to meet the children's needs when issuing legal decision-making and parenting time orders.
If paternity is in question for married parents, either parent can request a court order for DNA testing.
Each county in Arizona has a Conciliation Court — a division of the court system that helps resolve family issues through free or low-cost services.
Conciliation Court offers short-term marriage counseling (conciliation) to help spouses decide if they want to divorce. Either spouse can request conciliation services before or after one of them files a divorce or legal separation case.
For both divorcing and unmarried parents, Conciliation Court also provides mediation, evaluations and parent education classes.
Deciding what's in the children's best interests
Court rulings in decision-making and parenting time cases prioritize the children's physical and emotional well-being.
Based on evidence, the court considers all factors relevant to the children's best interests, including their:
- Relationships with each parent, siblings and others in their family and life
- Adjustment to home, school, and community
- Mental and physical health
- Preferences for parenting time and decision-making (if the court deems them mature enough)
Children don't testify about their preferences in court. Instead, the judge may interview them with only a court reporter present. Or, if the case has an assessment the professional assigned communicates the children's preferences to the judge.
Additionally, the court considers parents' mental and physical health, along with any history of domestic violence, falsely reporting abuse, or attempts to coerce an agreement.
The court also considers if parents have taken the required parent education course and evaluates each parent's willingness to support the children's relationship with the other parent (except in cases involving domestic violence or abuse).
Family court judges have broad leeway to consider any other factors they deem relevant to children's best interests. If the judge thinks parents aren't prioritizing children's best interests, they may appoint a best interests attorney to represent the children.
Special circumstances that can affect the process and outcome of a case include:
- Requests for third-party visitation (e.g., with grandparents or former step-parents)
- Children with extraordinary or special needs
- Undocumented immigration
- Parental alienation, domestic violence and child abuse
- Drug and alcohol abuse
- Criminal records (including DUIs)
In these cases, the court may order a professional custody expert to evaluate the situation and recommend legal decision-making and parenting time arrangements to the judge.
Experts recommend getting a lawyer if your case involves these or other complex circumstances.
Length of proceedings and divorce waiting period
The length of the court process — from filing to final orders — depends on the specifics of the case and the court's schedule.
Divorcing parents must wait 60 days after serving the first papers before they can submit a settlement agreement for final approval. (Except in Maricopa County, which allows parents to submit everything at once — these parents must still wait at least 60 days for final orders.) Unmarried parents can submit a settlement agreement any time after filing (or even when they file a case).
If the judge approves the agreement, final orders are mailed to parents within one to two months of submitting the settlement. If the judge doesn't approve the agreement or has questions, the court schedules a hearing, which parents may wait up to a month or more for.
If you don't settle, your case will likely take six months to a year. Extremely complex or high-conflict cases can take more than a year to resolve.
Costs to expect
Attorney fees are the most significant costs for parents litigating custody, and they can vary widely. In cases that go all the way to trial, each parent typically pays around $15,000 to lawyers. More complex cases can cost them each $30,000 or more.
If you can't afford a lawyer, you may qualify for free or low-cost legal advice and representation through your local legal aid office or other state programs.
Often, parents choose to hire a private mediator before or after they file a case. Private mediators generally charge between $250 and $500 an hour. Parenting coordinators charge similar rates.
Both parents must pay fees when they file paperwork with the court. These filing fees vary by case and county, but expect to pay at least $250 throughout the process. Other possible court costs include fees for court-ordered evaluations or mediation. Parents who can't afford court fees can apply for a fee waiver or deferral.
Representing yourself in a custody case
Many parents go through the custody process without a lawyer, making them pro se (self-represented) litigants. However, the law, paperwork and court procedures can be confusing for those without legal training, so self-representation is only advised in straightforward, uncontested cases.
Consult resources for self-representation and prepare as thoroughly as a lawyer would. Review Title 25 of the Arizona Revised Statutes, and have a legal professional look over any paperwork you create yourself.
The process of deciding legal decision-making and parenting time requires serious organization. You may need to create a parenting plan, draft parenting time schedules, calculate expenses, negotiate with the other parent and beyond.
The Custody X Change app enables you to do all of that in one place.
With a parenting plan template, parenting time calendars, an expense tracker, parent-to-parent messaging and more, Custody X Change makes sure you're prepared for whatever arises in your journey to custody.
Take advantage of our technology to stay on top of all the moving parts of your case.
Bring calm to co‑parenting. Agree on a schedule and plan. Be prepared with everything documented.