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CHANGES ON THE WAY TO ARIZONA’S CHILD CUSTODY STATUTES

In May 2012, Governor Brewer signed Senate Bill 1127. SB1127 updates current Arizona statutes to modify the factors a court must consider when determining what is in the best interest of a child. According to Governor Brewer, “the ultimate goal is to limit one-sided custody decisions and to encourage as much shared parent-child time as possible for the positive development of the child.” The new laws will go into effect on January 1, 2013.

The biggest changes are to A.RS. §25-403. This section sets forth the factors that a Court will assess in determining child custody based on the best interest of the child. Some noteworthy changes to section 25-403 are:

• The term “legal custody” is replaced with “legal decision-making”, and the term “physical custody” is replaced with “parenting time”;

• Which parent has provided primary care of the child and the wishes of the child’s parents have been removed as factors used to determine the best interest of the child;

• Requires the child to be of suitable age and maturity for the court to consider the child’s wishes as a factor to determine the best interest of the child.

The following is a summary of these changes as well as some other
changes to section 25-403. The new statutory language is stated in ALL
CAPS.

“The court shall determine custody, 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
relevant factors THAT ARE RELEVANT TO THE CHILD’S PHYSICAL AND EMOTIONAL
WELL-BEING, including:

1. The wishes of the child’s parent or parents as to custody.

2. The wishes of the child as to the custodian.

1. THE PAST, PRESENT AND POTENTIAL FUTURE RELATIONSHIP BETWEEN THE PARENT AND THE CHILD

2. 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.

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

4. IF THE CHILD IS OF SUITABLE AGE AND MATURITY, THE WISHES OF THE CHILD AS TO LEGAL DECISION-MAKING AND PARENTING TIME.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent and
meaningful continuing contact with the other parent. This paragraph does
not apply if the court determines that a parent is acting in good faith
to protect the child from witnessing an act of domestic violence or
being a victim of domestic violence or child abuse.

7. Whether one parent, both parents or neither parent has provided primary care of the child.

7. WHETHER ONE PARENT INTENTIONALLY MISLED THE COURT TO CAUSE AN
UNNECESSARY DELAY, TO INCREASE THE COST OF LITIGATION OR TO PERSUADE THE
COURT TO GIVE A LEGAL DECISION-MAKING OR PARENTING TIME PREFERENCE TO
THAT PARENT.

8. WHETHER THERE HAS BEEN DOMESTIC VIOLENCE OR CHILD ABUSE PURSUANT TO SECTION 25-403.03.

9. The nature and extent of coercion or duress used by a parent in
obtaining an agreement regarding custody. LEGAL DECISION-MAKING OR
PARENTING TIME.

10. Whether a parent has complied with chapter 3, article 5 of this title.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

11. Whether there has been domestic violence or child abuse as defined in section 25-403.03.” 

There are many other changes to the child custody statutes. A new
§25-403.01 is added, which specifies that the court can award sole
legal-decision making or joint legal decision making. The factors for
the court to consider in ordering one or the other are whether the
parents have an agreement; if the lack of an agreement is unreasonable;
the past, present and future abilities of the parents to cooperate in
decision-making; and whether the joint decision making is logically
possible.

There is also a new Section 25-415, titled “Sanctions for Litigation Misconduct”, which replaces the prior Section 25-415, titled “Custody by
nonparent; presumption; grounds; definitions”. Custody by non-parents
will be addressed in Section 25-409, and the term “In Loco Parentis”,
which is currently defined in Section 25-415, will be defined in Section
25-401.

The aforementioned changes are merely some of the changes to the
Arizona’s child custody statutes. In order to find out all of the
changes that will occur on January 1, 2013, it is necessary to review SB
1127 in its entirety. Contact a competent family law attorney for
assistance with these new statutes.