Custody and parenting time myths, Part I

by Annette Burns on October 5, 2015

Here are some custody and parenting time myths most family lawyers hear about and have to dispel.  This is part 1 of 2, the first five:

  1.   The kids get to choose who they live with as soon as they are 12 (or 14, or whatever).

False. I’ve always wondered where this myth started, because I’m not aware of any state that has an automatic “child decides” provision once they hit a certain age. Arizona definitely does not have this.

Yes, the wishes of the child is one factor the court is supposed to consider, IF the child is “of suitable age and maturity.”   ARS 25-403.   (The statute doesn’t tell us what that age is; that’s up to the judge.)    That factor is one of eleven factors that the court must consider in awarding joint legal decision-making (custody) or parenting time.   And the child’s wishes aren’t more important than the other ten factors; they’re all weighted equally until the judge decides otherwise.

Yes, in reality, a 16-year old’s wishes might be given a lot of weight, if that child seems reasonable, mature, and shows responsibility in other areas of his life.    Even a 13-year old’s wishes could be given great weight, under the right circumstances.  But the child’s actual age doesn’t have that much to do with it; the overall circumstances of the case will dictate how much weight the court gives to the child’s wishes.

2.  Since we have joint legal decision-making, everything in both our houses should be the same and we have to agree on bedtimes, suitable food, activities, and babysitters.

No, that’s not correct.  Joint legal decision-making (Joint LDM) means that the parents will make MAJOR decisions about the children together, and that neither parent’s opinion has more priority than the other’s.      This doesn’t mean that you have to agree on day-to-day things for the children, like homework, bedtimes and food.   Each parent is responsible for those day-to-day decisions during his and her own parenting time, without interference from the other parent.

3.   If the other parent is ever not there during his parenting time, he has to ask me first to take care of the children, before he hires a babysitter or lets his girlfriend watch them.

This is not correct, unless there’s a specific clause in your Parenting Plan requiring this.     In general, if a parent can’t be there every minute to care for the children, he is responsible for providing suitable child care of his own choice.    The clauses that require that the other parent be used as “first caretaker of choice” or “first right of refusal” can be very problematic and intrusive and are often denied by the court.

4.   Children should be with one parent during the school week and see the other parent on weekends and maybe more during the summer.  Stability during the school week means staying at one house.

In rare cases, or in cases of special needs children, a court might do this.  But in general, if a parent wants equal time with the children, the court is going to lean in favor of equal, 50-50 timesharing, including during the school week.  This is sometimes done by an alternating week schedule (the children change households every Friday or every Monday), and sometimes is done through a 5/2/2/5 schedule (where the children are always with Parent A on Monday morning to Wednesday morning; with Parent B from Wednesday morning to Friday morning; and weekends are alternated).     These schedules give each parent the chance to be a school day parent and take responsibility for homework, picking up and dropping off at school, and being involved with school things.

  1. The other parent can’t take the children out of state (or out of county) without my permission.

This is a correct statement during a divorce action, when an Injunction is in effect that says the children can’t go out of state without the written permission or a court order. The purpose of that, during the divorce, is to limit child abduction.  But after the divorce is over, that provision ends, and either parent is presumptively allowed to travel out of state with the children during his/ her parenting time, or for vacations or break time.    So unless you have a provision in your Parenting Plan that prohibits a parent from traveling at all, he can travel during his own parenting time.  Although he doesn’t need your permission, most court orders do require that the non-traveling parent gets notice of where the child is staying at night while traveling, and notice about all travel arrangements, including flight times.

The next 5 myths will be in the next post . . .

Previous post:

Next post: