Special Circumstances in Arizona Child Custody

Certain special circumstances can affect the process and outcome of your case. Consider consulting an attorney if your case involves these situations.

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Default judgment

The parent who opens the case (the petitioner) is required to formally notify the other parent (the respondent) in a process called service. To participate in the case, the respondent must file a response with the court by a set deadline (e.g., 20 days after being served in person).

If the respondent doesn't file by the deadline, the petitioner can ask the court for a default judgment, which grants them everything they asked for in their initial filing paperwork (as long as it's reasonable and meets the children's best interests). Some counties require the petitioner to attend a hearing, while others issue default judgments without a court appearance.

The petitioner can submit their county's application for a default judgment as soon as the response deadline passes. Then, they must mail or hand-deliver a copy of the application to the respondent, who has another 10 business days to file a response. If they still don't respond on time, the petitioner can move forward with their county's default process.

For married parents, the default judgment won't be issued until at least 61 days after the respondent was first served. Unmarried parents don't have this rule but still may wait a month or more for a hearing or approval of their final orders.

Sometimes, parents who agree on issues before opening a case use the default judgment process to get court orders without filing a settlement, which requires additional filing fees. Experts don't recommend this because it leaves the respondent vulnerable, with no official say in the case.

Supervised parenting time and exchanges

When a parent's history includes crime, family abuse or neglect, the courts often require their interactions with the children to happen during supervised parenting time (visitation) at a court-certified agency.

In some cases, a friend or family member can supervise visits. The court orders this when there's less risk to the children (e.g., if a parent abuses substances but has no history of crime, violence or neglect). The judge may allow one parent to choose the supervisor and location or require parents to agree.

In supervised exchanges, just the children's drop-offs and pickups between parents are supervised — either at an agency or by a court-approved third party. Common in cases with domestic violence or significant conflict, supervised exchanges minimize or eliminate parents' in-person interactions.

Sometimes, the court orders both supervised parenting time and exchanges, depending on what's best for the children.

Third-party custody and visitation

Anyone can file for sole legal decision-making if they consistently act as a parent to the children (in loco parentis) and the children's parents are divorcing, legally separating or not married to each other (including due to death). The third party must prove that it's not in the best interests of the children for the parents to have custody.

Arizona law doesn't allow shared legal decision-making between parents and a third party.

If both parents agree to have their children spend time with a third party, they can include it in their parenting time schedule. If a parent disagrees, the third party must prove to the judge that denying visitation would harm the children.

However, grandparents have a slightly easier burden of proof if the parents are unmarried or have been divorced for at least three months — then grandparents need only prove that visits are in the children's best interests.

Best interests lawyers

In high-conflict cases where parents lose sight of what's best for the children, the court may appoint a best interests attorney. Like an attorney for the child, this is a lawyer who represents the children only — not either parent.

A best interests attorney can file motions and participate in hearings and the trial on behalf of the children. They meet with children individually and communicate the children's preferences to the court. They may also conduct investigations to determine what parenting time and legal decision-making arrangements to advocate for.

Evaluations, parenting conferences and court-appointed advisors

To gather information about your family, the court may order an evaluation, a parenting conference or an assessment by a court-appointed advisor.

Judges order evaluations and parenting conferences in high-conflict cases involving domestic violence, substance abuse and other issues that may put children's safety at risk.

In an evaluation, a psychologist examines the mental health of the parents and children. They also interview others who know the family (relatives, teachers, etc.) and review the family's personal, medical and criminal records extensively. Evaluations often take several weeks, and parents must pay the hourly fees set by the evaluator. (If parents agree to parenting coordination, the coordinator may do the evaluation.)

A parenting conference is a limited evaluation typically completed in less than a day. A mental health expert interviews only the parents and children. They don't conduct psychological testing and only review the most relevant family records. Each parent pays $300 to the court for the parenting conference.

When a case doesn't warrant an evaluation or conference, the judge may order a court-appointed advisor. This custody expert reviews the case's court paperwork and interviews parents and sometimes children. Parents share the cost according to their incomes. (Parents with an approved fee waiver don't have to pay.)

All of these processes end with a report sent to the judge and parents. It summarizes the information gathered (including the children's custody preferences, if reasonable) and gives recommendations for a parenting plan, parenting time schedule and possibly other requirements like counseling.

Judges don't always order everything in the professional's recommendation, but they give the advice great weight when making decisions.

Protection from domestic violence (protective order)

Victims of domestic violence should consult with an attorney or legal aid office. Review the court's protective order information and AZ Law Help's article on things you should know about protective orders. These professionals and resources can help you request a protective order (sometimes called a restraining order).

To request a protective order, you can use the court's online AZPOINT program, which also has additional resources for victims of domestic violence. There's no filing fee, and after you submit your petition to the court, you'll testify in front of a judge before the other parent is notified (called an ex parte hearing).

If the court issues a protective order, it typically orders an evaluation before deciding legal decision-making and parenting time.

History of domestic violence, substance abuse or crime

If a parent has criminal convictions, corroborated allegations of domestic violence or substance abuse issues, the court presumes the other parent should have sole legal decision-making. This presumption can be overturned if the parent proves their behavior is in the past or is not detrimental to the children.

When parents want to share joint legal decision-making and parenting time and either has been accused or convicted of domestic violence, a DUI or drug possession in the past 12 months, their settlement agreement must include an explanation of why shared custody is still in the best interests of the children.

Parents who are undocumented immigrants

In Arizona, no law prevents undocumented parents from receiving legal decision-making or parenting time. At the same time, no law prevents a judge from considering a parent's immigration status in these decisions.

Before filing or responding to a case, undocumented parents should contact their local legal aid office or an immigration lawyer with experience in Arizona family law.

If a parent is detained or deported for immigration issues, they have the right to participate in the case remotely. They can use phone or video to participate in mediation, hearings and more.

Addressing special circumstances in a parenting plan

In Arizona, a parenting plan is required for managing legal decision-making and parenting time.

If a lawyer or mediator is writing your plan, share with them any circumstances it should address.

If you're writing your own plan, you have the flexibility to include what you want. But it should use airtight language that leaves no room for interpretation.

The Custody X Change parenting plan template walks you through common provisions while letting you enter as many custom provisions as you want.

It's a sure way to get a plan that's tailored to your family and meets legal standards for formatting and language.

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