1. Should I Settle My Case or Go to Trial?
Based upon the substantial experience of our Arizona divorce and Arizona family law attorneys, we counsel our clients to amicably resolve and settle their cases whenever they can do so without giving up what they are legally and equitably entitled to receive under the law.
Settlement can be achieved through informal settlement discussions or through formal mediation, which can be through the courts or through a private mediator. Our family law attorneys will negotiate on your behalf, provide you with the necessary resources and assist you in evaluation of settlement offers, assist you in formulating appropriate any counter offer you wish to make, and working through the emotionally difficult negotiation process.
An appropriate settlement agreement must include planning for the financial future of you and your children. While our family law attorneys understand the emotions that you will be going through, we are trained to remain free of the emotion and help you evaluate your case and any possible settlement issues logically.
While we try in every case to settle all of the issues without the need for court involvement, in certain cases certain issues must be resolved by the Court through trial. The attorneys at McGuire Gardner are experienced professionals having been through many trials and will work with you to gather the relevant evidence and witnesses, and will present your case to the Court so that the assigned Judge will be able to resolve the issue or issues equitably and as required under Arizona Statutes.
While our attorneys are very aggressive in a trial setting, we have found that negotiations are better accomplished working with the opposing attorney or opposing counsel in a professional, cordial, and amicable fashion.
Whether we resolve your case through amicable settlement, or after a hard fought trial, our attorneys will prepare all forms and settlement documents necessary to bring your case to conclusion. The determination on how parents will share custody, both legal and physical, must always be focused on the best interests of the child.
2. Do I Need A Prenuptial (or Premarital) Agreement?
Like a seatbelt, when you utilize a prenuptial agreement you hope that you never need it. Also, like a seatbelt, in the unexpected event that you do need it, it can save a lot of pain and frustration later on. Because Arizona law is written to protect the rights of all spouses throughout the state, the law must assume that all citizens are equally situated. This, however, is certainly not the case. By utilizing a prenuptial agreement, parties can contractually agree to specific division of assets, debts, and resolve other financial issues in a way that benefits both parties, thus overriding Arizona law for their specific case.
Generally prenuptial agreements are utilized by couples when one or more of the couples has children from a previous marriage, has substantial assets or debts from a previous marriage, or has business interests that her or she desires to retain has his or her sole and separate property.
3. What is divorce?Divorce is a court process to legally end a marriage. In Arizona a divorce is called a "dissolution of marriage." In addition to ending the marriage, a divorce may also deal with how property and debts of the spouses are divided between them and whether one spouse should pay support (alimony) to the other. If children are involved, a divorce also resolves custody, parenting time and child support issues.
4. What is a divorce “Decree?”The Decree is the final order of the court legally ending the marriage. Spouses are not "divorced" until the court grants the divorce and the Decree is signed by the judge. The Decree may also contain other orders deciding how the spouses' property and debts will be divided and what financial support, if any, will be paid by one spouse to the other. If children are involved, the Decree also will provide for custody, parenting time and child support.
5. Where do I get a divorce?In Arizona, only the Superior Court can grant a divorce. To get a divorce, one spouse must start a court case in the Superior Court. Although the Superior Court has a facility in each Arizona county, a court case to end a marriage must be started in the county where the person requesting the divorce lives.
6. Who can start a divorce case?In Arizona, either spouse can ask the court for a divorce. A divorce is not awarded to either spouse; rather, it simply changes the status of the marriage relationship.
7. When can I start a divorce case?Before starting the court case, either the husband or wife must have lived in Arizona for at least 90 days or have been a member of the armed forces stationed in Arizona for at least 90 days. Unless Arizona was the last state where you lived together with your spouse, issues regarding custody of children may require a longer residence time in order to deal with those issues.
8. What “reasons” do I need to start a divorce case?Unlike some other states, for most marriages Arizona does not require that one of the spouses prove blame or responsibility in order to end the marriage. Under Arizona law, the only question for the court is whether the marriage is "irretrievably broken," meaning that there is no reasonable chance that the spouses want to keep the marriage together. If you have a covenant marriage (these are rare, you will need to speak to an attorney if you believe you have a covenant marriage), however, under state law the court cannot grant a divorce unless certain things such as adultery, abandonment, physical abuse or regular substance abuse are proven or unless both spouses agree that the marriage should end. (The reasons for ending a covenant marriage are listed in section 25-903, Arizona Revised Statutes.)
9. Can the court help with marriage problems before getting a divorce?Yes. Because ending a marriage is a serious step with many legal and personal results, the Superior Court in many counties has trained family counselors and mediators available to assist couples in discussing marital problems and disputes involving children, without involving attorneys and judges. These Conciliation Services can be requested before someone files a divorce case or even after the case is started. Contact the Superior Court in your county for more information.
10. How long does it take to get a divorce?Under state law (section 25-329, Arizona Revised Statutes), a divorce cannot be granted by the court until at least 60 days after the first court papers are delivered to the other spouse. If the spouses are in agreement about getting a divorce and other issues (such as how to divide property and debts), the divorce can be finalized soon after the 60-day waiting period is over. If the spouses are not in agreement on how to settle all issues, the time it takes will depend on how complicated the issues are and on the court's schedule.
11. Can a woman go back to using her maiden name after the divorce?Yes. State law (section 25-325, Arizona Revised Statutes) allows a woman to return to ("restore") the use of her former name at the time the marriage is ended. A request must be made to the court at any time before the divorce Decree is signed by the judge. Usually, the request is included in the first papers filed in the divorce case.
12. What if I change my mind after starting a divorce case?If you and your spouse decide to stay married, the divorce case can be canceled (or "dismissed") by filing a request with the Clerk of Superior Court.
13. What is “community property?”Community property is property acquired by the spouses during the marriage. Generally, the law presumes that any property purchased or obtained by either spouse during the marriage is community property. Community property is not just land or buildings. It includes all kinds of property, such as money (all forms-cash, bank accounts, investment accounts), jewelry, home furnishings, automobiles, boats, stock options and the wages or earnings of either spouse during the marriage. Even retirement plans and pensions can be part of the community property estate.
14. Is everything the spouses own community property?Not necessarily. State law provides that property (of all types) owned by a person before marriage can remain the "separate property" of that spouse. Also items that a spouse receives by gift or inheritance during the marriage (and any increase in those items, such as through growth in value, interest earned or profits) are also the separate property of the spouse.
15. Why is it important to know the difference between community property and separate property?It is important to know what community property the spouses have because in a dissolution case the court is required by law to divide the community property in a fair (not necessarily equal) way. You must be able to show the court adequate proof of what you are claiming as your separate property, as the court must decide which property is separate property belonging to each spouse. If a retirement plan is involved, the court may have to sign a special order (a "Qualified Domestic Relations Order") so the company that keeps the retirement account can divide the money/benefits acquired during the marriage properly between the spouses.
16. Can we decide ourselves how to divide our property?Spouses are encouraged to resolve as many issues as possible. One way to do this is by a written agreement (called a "separation agreement") indicating how matters should be handled if the marriage ends. The separation agreement is a contract listing and describing the spouses' decisions about ownership of real estate, dividing property, financial support and, if children are involved, even issues of custody and parenting time. In a divorce case, the court must accept the separation agreement (except for matters about custody, parenting time and support of children) unless it is unfair.
17. What is a Petition?The Petition is the legal paper that asks the court to legally end the marriage and to issue other orders necessary to deal with the spouses' property and debts as well as financial support. If children are involved, the Petition also should include specific requests for custody, parenting time and child support. The Petition is an important legal document because generally the court cannot give a spouse anything that is not requested and included in the Petition. As with all papers filed in court, the form of the Petition must comply with court rules and state laws governing size, spacing and content.
18. What do the words “Petitioner” and “Respondent” mean?In any legal case, the people involved are referred to by words that describe their role in the case. In a divorce case, the person who starts the court case by filing the Petition is called the "Petitioner." The other spouse is called the "Respondent" because that spouse can file a paper answering the Petition that is called a "Response."
19. Why is the Summons important?The Summons is the official court paper that tells the other spouse that a divorce case has been started and that some action must be taken if the other spouse wants to be heard by the court. It also tells the spouse that there is a time limit in which to act. The Summons must be signed and stamped by the Clerk of Superior Court to be official. The divorce case cannot go forward until the Summons (with the Petition and other papers) is delivered to the spouse in the proper way.
20. What is the Preliminary Injunction about?
The Preliminary Injunction prevents ("enjoins") each spouse from doing certain things that might damage the person, property or legal rights of the other spouse. The purpose of the Preliminary Injunction is to keep each spouse from making decisions or taking actions about money and property belonging to both spouses and about the legal interests of any minor children until written agreement is reached by the parties or the court has had the opportunity to make fair decisions about these matters. As much as possible, it keeps everything as it was during the marriage while the divorce case is before the court. The Preliminary Injunction is an official court order that is effective until the divorce case has ended.
Basically, the Preliminary Injunction does these things:
- Directs the spouses not to sell, give away, transfer, borrow against or hide any community property, unless needed for the necessities of life or done in the usual course of a business.
- Prohibits family violence.
- Orders both spouses not to remove any children living in Arizona from the state without the written agreement of both spouses or the court's permission.
- Requires that all types of insurance coverage for the spouses and any children remain effective and that no one be removed. A spouse who disobeys the Preliminary Injunction may be arrested and prosecuted for the crime of interfering with judicial proceedings; that spouse may also be held in contempt of court (punished by fine or jail for violation of a court order).
21. What do I do after the Petition is filed?Under the United States' system of constitutional law, the court cannot act in a case unless all interested persons are notified and have a chance to be heard. In a divorce case, this means that the papers initially filed by the Petitioner must be made available to the other spouse, who then can reply to the court.
22. What is meant by “service” of papers?Giving notice to the other spouse that a divorce case has been started is called "service" and is done by giving ("serving") copies of the Summons, Petition and other papers which the Petitioner filed to the other spouse.
23. What if I do not know where the Respondent lives?If you do not know where the Respondent lives but the last known residence was in Arizona, service may be made by publishing a copy of the Summons in a newspaper for four consecutive weeks. NOTE: When service is made by publication, the court is limited in its authority to make orders in the case. For example, the court could not order that the Respondent pay financial support for the Petitioner or for any children.
24. How long do I have to serve the Summons and Petition?The Summons and a copy of the Petition and other required papers must be served within 120 days of filing the Petition. (The court can allow more time if a request is made before the 120 days runs out.) Otherwise the court case will be ended ("dismissed") and must be started again.
25. How does the court know if the Respondent has been served?After the Summons and Petition are served on the Respondent, a written statement (called an "Affidavit of Service" or a "Proof of Service") must be filed with the Clerk of Superior Court. A Sheriff or process server usually files the written statement on behalf of the Petitioner when service is made in the state. If service by publication is used, a written statement sworn under oath ( an "affidavit") must be filed with the court along with a copy of the notice published in the newspaper.
26. Can the Respondent simply agree to receive the Summons and Petition?
Yes. The Respondent may sign a paper ("Acceptance of Service of Process") agreeing to accept service of copies of the Summons, Petition and other required papers rather than have a Sheriff or process server deliver them. The Respondent also may sign a paper ("Waiver of Service of Process") agreeing not to receive the Summons and Petition at all. In either case, the agreement does not mean that the Respondent consents to things the Petitioner has asked the court to do. It means only that the Respondent admits receiving the Summons and Petition or does not want to have them formally served. This way of serving papers is allowed by court rules and eliminates the cost of having the sheriff or a process server deliver the papers. However, it is only useful when the Respondent cooperates with the Petitioner. This sometimes happens when both parties agree to end the marriage and want to make the divorce case go as quickly as possible. This method should not be attempted if domestic violence or the personal safety of the Petitioner is a concern.
If the Respondent either accepts or waives service, the signed form must be filed with the Clerk of Superior Court so the record shows that service actually was made.
27. What happens after the first papers are served?After the Respondent is served with the initial papers in the case, that spouse has the right to reply to the requests made in the Petition.
28. What is a Response?The reply to the Petition is made in a written document called the "Response." In the Response, the Respondent can agree with the requests that the Petitioner has made or ask for different orders from the court. The Response must be filed with the Clerk of Superior Court.
29. How long does the Respondent have to serve the Response?There is a time limit for filing the Response. Court rules provide that the Response must be filed within 20 days of the date that the Summons and Petition are served on the Respondent, or within 30 days if service is made on the Respondent outside the state.
30. What if no Response is filed?When no Response is filed, the Respondent loses the chance to be involved in the court case and the court may end the marriage by a "default divorce."
31. What is a “default divorce”?If the Response is not filed within the time allowed (20 or 30 days depending on where the Summons and Petition were served), the court may grant the requests made in the Petition and sign the Divorce Decree without an opportunity for the Respondent to participate. This is known as getting a divorce by "default."
32. Why is the default application mailed to the Respondent?Although the Respondent has failed to act in time and the default has been entered in the court record, the default does not become effective for 10 days after the application is filed. Within that time, the Respondent is given another opportunity to file a Response. If the Respondent acts within this ten-day period, the case will proceed as if there were no default.
33. Is a divorce automatically granted when the ten days run out?No. If the Respondent continues to be in default after the ten-day period has expired, the court may end the marriage and make other necessary orders without the Respondent participating. First, the court must hear evidence from the Petitioner to be sure there is reason to dissolve the marriage and to be sure all issues of property, children, support and any other issues are dealt with.
34. How does the court hear evidence for a default divorce?A court session called a "hearing" is scheduled before a judge or commissioner of the court at a particular time at the courthouse for the court to obtain the necessary information. The Petitioner must appear before the court to give information or answer questions. Usually the hearing is brief and informal. If a person does not have an attorney, the judge or commissioner asks questions about the Petitioner's residence in Arizona, the breakdown of the marriage, property and financial support issues. If children are involved, the court will also inquire about custody, parenting time and child support.
35. How soon can the default hearing be scheduled?By state law (section 25-329, Arizona Revised Statutes), the court may not hold a default hearing for at least sixty days after the date that the Summons and Petition are served on the Respondent (or the date the Respondent accepts or waives service, if that is the way service was made). This is the earliest time a person may ask the court for a divorce by default.
36. Who prepares the Divorce Decree?The Petitioner prepares the Decree for signature by the judge or commissioner. When preparing the Decree, it is important to repeat as closely as possible what was requested in the Petition. When a case ends by default, the court generally cannot issue orders that differ from what the Petition originally requested. (For example, if the Petition does not ask for financial support for a spouse, the Decree cannot order that the Respondent pay support.) The Decree should deal with all property, debt, support and child-related issues. It is likely that the judge or commissioner will not sign the Decree if different or additional things are requested. The Petition, then, must be as specific and complete as possible when it is filed.
37. What if the Respondent does not default and a Response is filed?If the Respondent files a Response with the court disagreeing with any of the requests made in the Petition and no agreements are reached, a trial is scheduled to resolve the disputes between the spouses. Court rules and procedures determine when the trial will be held, but a period of time will be allowed for the spouses to gather information about any issues that are disputed. At a trial, each spouse must present evidence to support claims made. The court will decide how to divide the property and debts of the spouses, make any orders for financial support and make orders regarding the children, if any. At any time before the trial is held, the spouses may reach agreements about the disputed issues and may avoid a trial by asking the court to grant a decree ("Consent Decree") based on their agreement.
38. What if children need support while the court case is still in progress?Once a divorce case is started, either spouse may ask the court to issue orders for temporary support of a child. This "temporary order" lasts until the court makes a final decision in the Decree that ends the marriage.
39. What is custody?Custody is a legal term referring to the right of a person to make decisions about the care and welfare of a child (for example, decisions about education, health care and religious training). The parent with custody is often called the "custodial parent." In most cases, but not necessarily all cases, the child resides with the custodial parent most of the time. The law does not favor one form of custody over another, nor do they base their decisions on the sex of the parent.
40. What is parenting time?Parenting time (also sometimes called "access," "contact," "residential time," or "visitation") is a legal term referring to the opportunity for the child to spend time with the parent who does not have primary physical custody custody.
41. When do custody and parenting time issues arise?Most often, disputes about custody and parenting time arise when married parents ask the court for a dissolution of the marriage (divorce) or a legal separation; however, custody issues may also arise between parents who have never been married or who no longer live together. Custody issues may also arise after the divorce is final. In these situations, parents sometimes disagree about who makes decisions affecting the child's welfare, where the child resides and how much parenting time a parent will have when the child is not residing with that parent.
42. Who decides custody and parenting time?Parents may agree between themselves about custody or parenting time; however, if the parents cannot agree and if the Arizona legal system becomes involved (for example, when a parent asks the court for a divorce), the Superior Court will decide these issues.
43. What is meant by “sole custody”?This means that one person has sole legal custody of a child. In this situation, the court orders that one parent be responsible for making the major decisions regarding the child's care or welfare. Although both parents may discuss these matters, the parent designated by the court has authority to make final decisions in the event the parents do not agree.
44. What is meant by “joint custody”?This means joint legal custody or joint physical custody or both. In most cases, in order to obtain an order for joint custody, both parents must agree to and submit a written parenting plan to the court.
45. Can more than one parent be granted custody by the court?Yes. In addition to sole custody, the law allows the court to grant joint legal custody and joint physical custody or both.
46. What is “legal custody”?Legal custody is the status where one or both parents are responsible for making the major decisions regarding the child's care or welfare. When legal custody is awarded to one parent, it is called "sole legal custody." The law does not favor one form of custody over another.
47. What is “joint legal custody”?When the court grants joint legal custody, each of the parents has the same rights to make decisions about the child's care and welfare and neither parent's rights are superior to those of the other parent. In the best interest of the child, the court may direct that certain decisions be made by only one parent, even when joint legal custody is granted. The court may order joint legal custody without ordering joint physical custody.
48. If parents have joint legal custody, does the child live with each of them for equal amounts of time?Not necessarily. Having joint legal custody does not mean that parents also have joint physical custody or equal parenting time (see section 25-403, Arizona Revised Statutes).
49. What is “joint physical custody”?When the court grants joint physical custody, the place where the child lives (the child's physical residence) is shared between the parents in a way that the child will have essentially equal time and contact with both parents. Joint physical custody may be granted in situations where parents share joint legal custody or when one parent is granted sole custody.
50. Does the law favor joint custody or sole custody?Arizona law does not favor one form of custody over another. Also, the court may not prefer a parent as a custodian because of that parent's sex.
51. What is the procedure for getting a custody order?The court may grant a custody order only in certain kinds of cases. Most often, custody is determined when the parents are seeking a legal separation or divorce, or when parents are asking the court to change a custody decision that was made in an earlier separation or divorce case. Custody also may be ordered when one parent starts a court case to decide paternity (or maternity) of a child. When a parent starts a court case for legal separation or divorce and the parents cannot agree about child custody, custody automatically becomes an issue for the court to decide. These court decisions are made in temporary orders hearings and in final trial if the parties are unable to reach agreement. After a decree of legal separation or divorce has been granted, the court still has authority to change (modify) an earlier custody order.
52. How can a court’s custody order be changed?Either parent may request in writing that the court modify a custody order. To change an existing order it must be shown that the best interests of the child are served. The request is filed with the Clerk of the Superior Court and a fee for filing is charged; however, there are limitations on requesting a modification. For example, a request may not be filed for one year from the date of the earlier order, unless there are special circumstances seriously endangering the child's physical, mental, emotional or moral health. If a form of joint custody has been ordered, a modification may be requested at any time if there is evidence that domestic violence, spousal abuse or child abuse has occurred since the date the last order was granted. In a joint custody situation, a parent must wait six months before seeking a modification if the reason for the request is that one parent has failed to obey the court's custody order.
53. How does the court make its decision about custody?If there is a dispute about custody, the court sometimes refers the parents to internal court mediation services. This process gives the parents an opportunity to reach an agreement regarding custody and related issues; however, if the parents are unable to agree on custody, the court will decide for them. Sometimes the court seeks professional advice from outside experts who evaluate the family situation or offer an opinion about custody. In some situations, the court also may order an investigation by a social service or other agency. In every case, the court must decide custody based on a determination of the best interests of the child.
54. What if the parents agree how custody should be decided?Usually it is best if parents can agree on decisions about raising children after a legal separation or divorce. The court usually accepts the parents' mutual decision, but the court's decision about custody must be made in the best interests of the child. After review of the agreement's terms, the duty imposed on the court by law may require that the court not accept the parents' agreement.
55. What does the court consider when deciding what is in the child’s best interests in custody disputes?State law provides guidance to the courts by listing factors that the court should consider. These include such things as the wishes of the parents, the child's wishes, how the child interacts with each parent and any other children in the family, the health of each person involved, the child's adjustment to home, school and community, which parent primarily has provided care for the child in the past and which parent is more likely to allow the child to have frequent and meaningful contact with the other parent. The court also must consider whether there has been domestic violence in the family, drug or alcohol use by a parent or other circumstances that may endanger the child's physical, mental, emotional or moral health. The court will presume that an award of custody to a parent who committed an act of domestic violence is contrary to the child's best interests.
56. What if the parents want to have joint legal custody?If the parents request joint legal custody, they also must submit to the court a written plan (parenting plan) indicating how they will cooperate to raise and care for the child. The court may order joint legal custody without ordering joint physical custody. The court also may order joint legal custody even if one parent objects. The court's decision will be made in the best interests of the child.
57. When custody is decided, how does a parent obtain child support?The law provides that when the court grants a custody order, it also must decide what amount of child support should be paid, by each parent, under the Arizona Child Support Guidelines. Joint custody does NOT mean that either parent is no longer responsible to provide for the support of the child.
58. Can a person other than a parent have custody?Yes. The law provides that a person who stands in loco parentis to a child may ask the court for custody (or parenting time). To be in loco parentis a person must have been treated as a parent by the child and have formed a meaningful parental relationship with the child for a substantial period of time. There are other requirements that must be met before a request may be made to the court. One of the child's parents must be deceased, the child's legal parents must be unmarried, or a court case for divorce or legal separation between the legal parents must be pending (see section 25-415, Arizona Revised Statutes).
59. How can a parent obtain school, medical and other records of their child after divorce?No matter which form of custody is ordered, both parents are entitled to the same access to all records pertaining to their child unless the release of such information would place the child or one of the parents in danger (see section 25-403, Arizona Revised Statutes).
60. When may a parent with custody move from Arizona with the child?If both parents live in Arizona, the parent with physical custody desiring to move with the child must give 60 days' notice to the other parent before the child may be moved more than 100 miles from the other parent or from the state. The 60-day period gives sufficient time to the non-moving parent to request a hearing to stop the move.
61. What if my job requires an immediate transfer in less than 60 days?A parent who is required to relocate in less than 60 days must be a parent with joint physical custody and have the agreement of both parents or a court order allowing the move of the child. If agreement cannot be reached in the situation of required relocation in less than 60 days, the moving parent must file a request with the court.
62. Why is parenting time important?A child deserves to have a good relationship with both parents. When parents do not live together, the child should have the opportunity to spend time with each parent.
63. What parenting time rights does a parent have?State law entitles a parent to reasonable rights of parenting time to ensure that a child has frequent and continuing contact with the parent. However, parenting time can be limited, or even denied, if the child's physical, mental, moral or emotional health would be seriously endangered by parenting time with a parent.
64. What amount of parenting time is right?That depends on the child's age and stage of development. For example, it may not be appropriate to have lengthy periods of parenting time with a newborn child, although more frequent shorter visits may be appropriate. Some counties (Coconino, Maricopa, Mohave, Pima, Pinal and Yavapai) have established guidelines to help parents and the courts decide how much parenting time is important to the child. The Arizona Supreme Court has also published Model Parenting Time Plans to assist parents in establishing age-related parenting time schedules; however, it is important to remember that guidelines do not apply to all family situations or to all children. If the parents cannot agree on a schedule, the court decides parenting time on a case by case basis.
65. What is reasonable parenting time?The term "reasonable parenting time" means time spent with a child that is average for most cases. Although the term has sometimes been used in parenting plans and even in court orders, parenting time decisions depend on the circumstances of each family, considering the child's age and development. When parenting time is described only as "reasonable," it is difficult to predict when or for how long parenting time periods should occur. When preparing an agreement or parenting plan, it is recommended that parents specifically decide when and for how long parenting time periods will be, including how to handle and allocate special occasions like vacations, school breaks, birthdays and holidays so that both parents are considered. Guidelines available in some counties and the Model Parenting Time Plans may be useful to parents in making these decisions. The parenting time order should be written specifically enough to enable the court to enforce the order if the order is not followed and one parent files a request for enforcement.
66. Are parenting time and custody related?Yes. Arizona law provides that in most cases a parent not granted custody of the child is entitled to reasonable parenting time rights to ensure that the child has frequent and continuing contact with that parent. As a part of its custody order, the court also will decide what amount of parenting time is appropriate. Even if parents share joint legal custody, the child may live primarily with one parent or share residential time with both parents, making it important to decide what parenting time schedule should be ordered.
67. Do I have to start a court case to have parenting time?Parents are free to agree on the best parenting time plan for their child. If parents cannot agree, or if their agreement is not working, court action may be necessary. Remember, only the Superior Court can decide parenting time matters and issue an order that can be enforced if disagreements arise or if one parent does not honor the parenting time schedule.
68. How do I obtain a legal order for parenting time?As with custody, the court may grant a parenting time order only in certain kinds of cases. Most frequently, parenting time is determined when the parents are seeking a legal separation or divorce, or when parents are asking the court to change a parenting time decision that was made in an earlier separation or divorce case. Parenting time may also be ordered when one parent starts a court case to decide paternity (or maternity) of a child or after a voluntary acknowledgment of paternity. When a parent starts a court case for legal separation or divorce, child custody and parenting time automatically become issues for the court to decide if the parents cannot agree. After a decree of legal separation or divorce has been granted, the court still has authority to change (modify) an earlier parenting time order. Either parent may request in writing that the court decide what parenting time should be. The request is filed with the Clerk of the Superior Court and a filing fee is charged.
69. How does the court make its decision about parenting time?If there is a dispute about parenting time, the court sometimes refers the parents to court mediation services. This process gives the parents an opportunity to reach an agreement regarding parenting time and related issues. However, if the parties are unable to agree on parenting time, the court must decide for them. Sometimes the court seeks professional advice to evaluate the family situation or offer an opinion about parenting time. When making its decision, the court will consider many factors, for example, the age and health of the child, the time each parent has available from work or other obligations, the distance between the parents' homes, the child's school schedule and the suitability of living conditions in each parent's home.
70. What if a parent disobeys a court order for parenting time?If one parent violates a parenting time order, the other parent cannot deny parenting time, stop paying support or take other self-created action to punish the violating parent (to do so also would violate the court order). Instead, the court should be asked for help. To do this, a parent must file a written request for enforcement with the Clerk of the Superior Court and pay a filing fee. A hearing before the court may be necessary if the matter cannot be resolved.
71. What can the court do if a parenting time order is disobeyed?When a parent files a request for help in enforcing a parenting time order, state law requires the court to take quick action. There are several remedies the court can use to deal with the violating parent. Some of these remedies may include ordering parenting time to make up for missed sessions, ordering the violating parent to attend education classes or counseling and finding the violating parent in contempt of court and ordering monetary fines (see section 25-414, Arizona Revised Statutes).
72. Can a person other than a parent have parenting time?Yes. In certain circumstances, Arizona law permits grandparents and great-grandparents to have parenting time rights if it is in the best interests of the child. In order to request parenting time rights by a non-parent, the child's parents must have been divorced for at least three months, one parent must be deceased or missing for three months or the child must have been born out of wedlock (see section 25-409, Arizona Revised Statutes). The law also provides that a person who stands in loco parentis to a child may ask the court for parenting time. To be in loco parentis a person must have been treated as a parent by the child and have formed a meaningful parental relationship with the child for a substantial period of time. There are other requirements that must be met before this request may be made to the court (see section 25-415, Arizona Revised Statutes).
73. What is supervised parenting time?Sometimes, to prevent harm to a child's health or emotional development, it is necessary for the court to order that a social service agency or a mental health professional be involved with a family to be sure parenting time (and even custody) orders are followed. In this situation, the court may order the agency or another party to supervise or oversee the parenting time periods. In some cases, the exchange of the child is supervised by a third party to diminish the conflict between the parents to which the child would be exposed without supervised exchanges.
74. What if a court decision regarding custody, child support or parenting time needs to be made before the end of the case if the parents cannot agree?If the parents cannot agree in connection with any or all of these issues at the beginning of the case, one or both parents may file a request with the court for temporary orders. Temporary orders are short-term decisions made by the judge which remain in effect until a final court order is entered in the case. The Preliminary Injunction is the first temporary order issued in a suit for dissolution. In addition, either party may file a petition for temporary orders for child related issues such as child custody, child support and parenting time. If no agreement is reached after proper request is made, a hearing must be requested and held before the court, including witness testimony and presentation of evidence.
75. Can custody and parenting time be decided for parents who are not married?Parents are free to make decisions about custody or parenting time on their own. When parents are unmarried and no order has been entered to establish parental rights, the biological father has no legal right to either custody or parenting time until paternity is established. He also has no legal obligation to pay child support to the mother until an order of paternity is entered. In Arizona, paternity can be legally established through the Superior Court, the Department of Health Services or the Department of Economic Security.
76. After legal paternity has been established, how are custody and parenting time decided?As with other cases, custody and parenting time can only be legally decided by the Superior Court. The court must decide custody and parenting time based on the best interests of the child. If a court case to establish paternity has been started in the Superior Court, the court automatically decides custody and parenting time matters. If paternity has been established by voluntary process through the court, the Arizona Department of Health Services or the Department of Economic Security hospital paternity program, one of the parents must file a specific request with the court to have custody or parenting time legally decided.
77. If the parents are not married, should the mother have custody?Until legal paternity is decided, the law presumes that custody of a child should be with the mother. However, when a court legally establishes paternity, the law directs that unless the court orders otherwise, custody of the child should be with the parent with whom the child has lived for most of the six-month period before paternity is decided. Of course, when the court decides custody or parenting time, the decision is always based on the best interests of the child. Accordingly, the court may order that either or both parents have custody if it is in the child’s best interests.
78. What about custody and parenting time?When a divorce case is started, the court automatically has authority to decide issues about custody of any children involved. If there are disputes between the parents about custody or parenting time, in most counties the court generally directs the parents to meet with trained court professionals and try to come to an agreement through discussions called "mediation." If the parents cannot agree, the court must decide these issues.