Arizona Child Custody - Legal Decision Making

As with our earlier article, Arizona Child Custody - Parenting Time, Legal Decision Making was voted into law in January of 2013 in an effort to further clarify Child Custody and separate issues of Parenting and Legal Decision Making.  While Arizona will make every effort to insure that a child will receive equal and meaningful time with both parents, it does take a hard look at who will be making the major life decisions for a child that revolve around education, religion, medical and other style of life decisions.  Legal Decision Making orders are based on Arizona Revised Statute 25-403 and always focus on what is in the best interests of the child.  Working with a skilled an experienced Arizona Divorce Attorney who has a focus in Child Custody, or an Arizona Child Custody Attorney, is your best possible chance to protect your rights and insure the best possible outcome for your child.

Types of Legal Decision Making

The first type of Legal Decision Making is where one parent has sole Legal Decision Making rights regardless of what Parenting Time ruling has been made by the court.  This is not a common ruling and the court does not make this ruling lightly.  A parent with a demonstrated history if being incapable of making good decisions for themselves or presents a clear danger to the child emotionally, physically, mentally or morally will always have to defer to the major decisions made by the other parent in this case.

The second, more common, ruling that the court will hand down is that both parents will have equal say in the major decisions that are made for a child.  Parents that are incapable of working together can be ordered by the court to receive ongoing counseling to help them work together in the best interests of the child.  The third type ruling is where both parents are ordered to have joint Legal Decision Making rights but where one parent will have the final say.  The court can also be very specific about the areas where one parent will have final say.

Determination of Legal Decision Making

The court will consider many factors when deciding on Legal Decision Making for a child that could include:

• The Child's age
• Any preference the child may have in Legal Decision Making
• Any preference the parents may have in Legal Decision Making
• The Mental and Physical health of  both the parents and the child.
• The time each parent can spare from work
• Any criminal records of the parents
• Any history of domestic violence
• The education progress of the child in school
• Any history of drug or alcohol abuse by the parents

Arizona Child Custody - Parenting Time

In January of 2013, Arizona changed the Child Custody law by dividing custody into two separate areas known as Parenting Time and LegalDecision Making.  Parenting Time is the focus of this article and is the area that dictates visitation between a parent and a child.  Arizona courts have focused on making rulings that provide equal and meaningful visitation between parents and children because they feel this is in the best interests of the child.  Without just cause that proves there is a danger to the emotional, physical, mental or moral welfare of the child then Arizona typically rules in favor of equal parenting time.  Working with an Arizona Child Custody Attorney, or an Arizona Divorce Attorney that is experienced with Child Custody, is the best possible advice that I can provide you so that you can insure that you are doing everything in your power to protect your rights.

There are three basic types of rulings that courts hand down when facing Parenting Time decisions.  One parent has full physical custody of the child without the other parent having any visitation, one parent has full physical custody and the other parent will have limited or supervised visitation and finally the court can hand down a decision that involves parents sharing equal parenting.  The court can require parents who have major conflicts to attend ongoing counseling to help resolve their conflicts if equal parenting time is ordered.  Another requirement of the court in the case of parents who cannot come to a mutual conclusion about Parenting Time is that each parent must submit a parenting plan to the court that is in compliance with Arizona Revised Statute 25-403.02.

There are many factors that come into play when determining Parenting Time.  One factor is the fitness of both parents to raise and care for a child.  Another factor is the availability of both parents due to work schedules to be able to provide time for their children. Other factors could include the geographical distance between the two households and the educational needs of the child.  Arizona will make every effort to insure that a child will receive equal and meaningful time with both parents under the new laws introduced in 2013.  

Domestic Relationship Filing Fees

Domestic Relationship Filing Fees were changed in December of 2013 and the following information is available for viewing at Arizona Superior Court Filing Fee section of the public Arizona Judicial Branch government website.  A divorce in Arizona, called a petition for dissolution of marriage, must be filed in order to begin the divorce process.  The person filing for divorce must meet all necessary Arizona Divorce Requirements before actually filing for divorce.  While it is completely possible to file for divorce yourself, there is no replacement for the legal advice of an experienced Arizona Divorce Attorney when seeking to file divorce to protect your rights and to aggressively advocate your case.

One requirement of the filing process is that the other part must be served papers in a manner that can show the court that they were actually served on the other party.  This is usually accomplished by the Sheriff's or using a process server that will provide an affidavit of service.  The papers must be served within 120 days of the date of filing and the party being served has 20 days to file a response with the court.  If the person being served does not respond, the court can end the marriage with a "default divorce", but will wait another 10 days before issuing the order to provide a grace period to the respondent.

Arizona law requires that the court will not rule on any divorce, default or otherwise, for a minimum of 60 days after the date the summons and petition are served.  This is primarily designed to provide a cooling off period for both parties.

After filing, your Attorney will usually set up a temporary injunction hearing where any temporary orders that are necessary are examined.  This could include Spousal Maintenance, Child Support, Legal Decision Making and Parenting time.

Joint Preliminary Injunction

• A Joint Preliminary Injunction is filed that prohibits either party from doing anything involving money, property, children and insurance until the court decides on the issues.

• The injunction orders the parties not to remove any children from Arizona without written agreement of both parties.

• The injunction prohibits family violence.

• The injunction requires that health insurance remains in effect.

Arizona Superior Court Domestic Relationship Filing Fees

DOMESTIC RELATIONS
ARS Code	Service	Base Fee	Doc Storage	Spousal Maint Fund	Concil. Court Fund	Dom Rel Ed/Med Fund		Total
C	Petition for dissolution of marriage	138.00	15.00	5.00	65.00			223.00
D	Response or initial appearance in dissolution	69.00	15.00	5.00	65.00			154.00
C	Petition for legal separation	138.00	15.00	5.00	65.00			223.00
D	Response or initial appearance in legal separation	69.00	15.00	5.00	65.00			154.00
C	Petition for annulment	138.00	15.00	5.00	65.00			223.00
D	Response to petition for annulment	69.00	15.00	5.00	65.00			154.00
G	Order of protection	N/C
E	Change of venue transmittal fee	27.00						27.00
E	Change of venue to another county on section (A.R.S. § 12-404) transmittal fee	27.00						27.00
A	Change of venue to this county (except under A.R.S. § 25-502(G))	174.00	15.00		65.00			254.00
G	Injunction against harassment	N/C
C	Petition for domestic relations case for which a fee is not specifically prescribed: foreign judgment for custody; establish support/custody.	138.00	15.00					153.00
D	Postadjudication petitions in domestic relations cases (6)	69.00				15.00		84.00
	(Seventy-five percent remitted to county treasurer for deposit in Expedited child support & parenting time fund est. In A.R.S. § 25-412)

Arizona Spousal Maintenance - Alimony

While most people know what Alimony is, Arizona has a legal term for it and they call it Spousal Maintenance.  Spousal Maintenance in Arizona is considered to be rehabilitative in nature.  Spousal Maintenance is usually awarded during the Temporary Orders hearing during divorce proceedings and can continue for a fixed period of time when the Final Orders for divorce are issued.   It is usually awarded in marriages of long duration where one spouse has been the primary financial earner and the other spouse does not have the ability to provide for themselves financially at the time the divorce is filed.  Unlike Child Support, which is governed by the Arizona Child Support Guidelines and makes use of the Arizona Child Support Calculator to determine the amount to be paid and the length of time to pay, Spousal Maintenance has no firm and clear guidelines.  Spousal Maintenance is governed by Arizona Revised Statute 25-319 and is awarded at the discretion of the judge who is presiding over the divorce.

Factors that are considered for someone seeking Spousal Maintenance are the length of the marriage and the standard of living the couple enjoyed while married.  Another area examined is the ability of the spouse seeking Spousal Maintenance to support themselves and the time, training and education required for that person to become financially self-sufficient.  The final area looked at is the age, physical health and mental health of the parties involved.  Seeking the advice of an experienced Arizona Spousal Maintenance Attorney when seeking, or being asked to pay, Spousal Maintenance is the best possible opportunity to protect your rights and receive the judgment you are seeking.

Spousal Maintenance can be paid in a lump sum or in monthly installments.  This can be determined by mutual agreement by the couple or can be ordered by the court in cases where there is dispute.  Spousal Maintenance is always temporary in nature and designed to be a rehabilitative tool to aid one member of the marriage in attaining financial self-sufficiency.

Spousal Maintenance ARS 25-319 Eligibility

Under ARS 25-319, a person is eligible for Spousal Maintenance if any of the reasons outlined below are true for the spouse seeking maintenance.

• ·         lacks sufficient property to provide for the spouse’s needs.
• ·         is unable to be support ones self-thorough appropriate employment.
• ·         is the custodian of a child whose age or condition is such that the spouse should not be required to work or lacks earnings ability.
• ·         contributed to the educational opportunities of the other spouse.
• ·         had a marriage of long duration and is of an age that precludes the possibility of gaining adequate employment to be self-sufficient.

Arizona No-Fault Divorce

Arizona No-Fault Divorce can be simply defined by stating that the court system does not take into account which party is at fault for the fact that the couple wishes to dissolve their marriage and only requires that one, or both, members of the marriage feel that the marriage is irretrievably broken.  Marriage is a legal contract in the state of Arizona and when an individual meets the Arizona Divorce Requirements, the court will accept a filing for dissolution of marriage simply because that person wishes to end the legal contract of marriage.  Working with an Arizona Divorce Attorney is the best possible way to protect your rights and to maximize your chances of successful outcome when bringing your No-Fault Divorce case before the courts.

No-Fault Divorce was first introduced into law in the United States in 1953 by the State of Oklahoma and then, in 1970, Governor Ronald Reagan created what is considered to be the most well known reforms of divorce law by enacting No-Fault Divorce in the state of California.  Prior to No-Fault Divorce, there was a burden of proof upon one member of the marriage to prove that their spouse had been unfaithful, cruel, abusive or otherwise at fault for the marriage no longer being tenable.  Some of the reasons No-Fault Divorce was lobbied for so strongly on both sides was to eliminate a great deal of time in a slow court process, changing views on gender roles and women's rights and to alleviate a growing burden on the court due to the rising numbers in divorce cases.  By 1987, all 50 States had adopted No-Fault Divorce as their primary divorce model or an option when filing for divorce.

While Arizona does not examine reasons beyond the marriage being irretrievably broken when hearing a divorce case, they do examine some of these reasons in other areas.  Negative behavior that can place a child in physical, mental, emotional or moral danger is taken account when determining child custody issues that arise from divorce.  In Arizona, we also have a topic that is known as Community Waste that commonly is brought into focus when determining the Division of Property in a divorce.  Community Waste states that activities such as illegal drug use, alcoholism or extra-marital affairs that take away from the financial well-being of one member and that have no benefit to the overall marital community can be examined.  In cases where Community Waste has been determined, the Division of Property and financial assets can be adjusted to insure that the person who did not benefit from these activities during the marriage receives a larger share of these assets when the contract of marriage is dissolved.

Arizona Divorce Requirements

The Arizona Divorce Requirements are defined in Arizona Revised Statute 25-312 to standardize a set of criteria to file for No-Fault Divorce in the Maricopa County court system.  Working with an experienced Arizona Divorce Attorney is your best possible chance to protect your rights and maximize your chance for success when facing divorce.  No website, regardless of how informative it is, can replace the advice an excellent lawyer can provide you with.  Arizona requires a minimum of 60 days from the date of filing for the divorce process can be completed.  At any time during that 60 day process, either party can request that the case be sent to conciliation court if they feel that the marriage can be saved.  Conciliation court will add an additional minimum 60 days to this timeline.

Requirements for Divorce

• A person must reside in Arizona for a minimum of 90 days before filing.
• The papers have to be filed county where the person resides.
• Either party can file for divorce.
• Arizona is a No-Fault divorce state. The court only requires that the marriage is “Irretrievably Broken”.
• A Petition to dissolve the marriage has to be filed with the court’s clerk.
• The person filing asks the court to legally end the marriage.
• The person filing requests orders regarding property, debt and financial support.
• The person requests orders for child custody if it applies.
• A Summons must be served on the other party informing them that a divorce request was filed.

Joint Preliminary Injunction

• A Joint Preliminary Injunction will takes affect with the filing.
• Prohibits either party from doing things involving money, property, children and insurance until the court decides on the issues.
• Orders the parties not to remove any children from Arizona without written agreement of both parties.
• Prohibits family violence.
• Requires that health insurance remains in effect.

Right to Convert Health Insurance

• Notice of Right to Convert Health Insurance – In Arizona, if a divorce case starts each party should receive a notice from the other regarding rights and responsibilities of health care insurance policies.