Senate Bill 1127: Changes to Arizona’s Custody Statutes

by Annette Burns on May 24, 2012

Senate Bill 1127 was signed by Governor Brewer on May 9, 2012. Its changes (which are to Arizona’s custody statutes) are effective 1/1/2013.

If you haven’t read through the statutory changes yet, you have until the end of the year.  This is a VERY general summary of the changes and is not intended to be all-encompassing or a substitute for reading SB1127 and all the new statutes yourself.

Anything stated in ALL CAPS below is new statutory language.

In general, all previous statutory references to “custody” are now “legal decision-making”, and all references to “visitation” are now “parenting time”.  There is still a definition for “visitation” which is now the “schedule of time that occurs with a child by someone other than a legal parent.”    The status specifies that for purposes of applying international treaties, federal law, or the laws of other jurisdictions, “legal decision-making means legal custody.”

The definition of in loco parentis is now in §25-401.

Legal decision-making is defined as the legal right and responsibility to make all nonemergency legal decisions for a child, including education, health care, religious training and personal care decisions.

Section 25-403, which is the factors the court will use to determine legal decision-making and parenting time decisions, is changed as follows:

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.

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 joint decision-making is logically possible.

[Question: with telephone and email, how could joint decision-making not be logistically possible?]

Section 25-403.02(C) now states that parenting plans shall include at least the following:

  1. Designation of either sole or joint legal decision-making;
  2. Practical schedule of parenting time, including holidays and school vacations;
  3. Procedure for the exchanges of the child, including location and responsibility for transportation;
  4. Procedure for dispute resolution;
  5. Periodic review;
  6. Procedure for communication about the child, including methods and frequency.

Section 25-406C, which covers the education requirements for any professional who submits a report to the court, is now clear that these education requirements also apply to a court-appointed attorney for a child and a court-appointed advisor (Rule 10, Arizona Rules of Family Law Procedure).   I wish they also would have added “Parenting Coordinator” to this list.   No one should act as Parenting Coordinator without this training (which is six initial hours of training on domestic violence, six initial hours of child abuse training, and four subsequent hours every two years on both subjects), but it would have been nice to see this point made crystal clear in the statute.     It appears that the legislature still may not know what Parenting Coordinators are, as the statutory reference to “family court advisor” in 25-406B remains and was not changed to Parenting Coordinator.

Section 25-409 “Third Party Rights” is all new, regarding in loco parentis actions.   See the new language at page 12 of the attached.  There are significant changes to the in loco parentis decision-making request, the in loco parentis visitation request, and grandparent visitation requests in this statute and I’ll try to deal with those in a separate post.

Section 25-415, formerly the in loco parentis statute, is now titled “Sanctions for litigation misconduct.”

§25-415.  Sanctions for litigation misconduct

A.  THE COURT SHALL SANCTION A LITIGANT FOR COSTS AND REASONABLE ATTORNEY FEES INCURRED BY AN ADVERSE PARTY IF THE COURT FINDS THAT THE LITIGANT HAS DONE ANY ONE OR MORE OF THE FOLLOWING:

1.  KNOWINGLY PRESENTED A FALSE CLAIM UNDER SECTION 25‑403, 25-403.03 OR 25‑403.04 WITH KNOWLEDGE THAT THE CLAIM WAS FALSE.

2.  KNOWINGLY ACCUSED AN ADVERSE PARTY OF MAKING A FALSE CLAIM UNDER SECTION 25‑403, 25-403.03 OR 25‑403.04 WITH KNOWLEDGE THAT THE CLAIM WAS ACTUALLY TRUE.

3.  VIOLATED A COURT ORDER COMPELLING DISCLOSURE OR DISCOVERY UNDER RULE 65 OF THE ARIZONA RULES OF FAMILY LAW PROCEDURE, UNLESS THE COURT FINDS THAT THE FAILURE TO OBEY THE ORDER WAS SUBSTANTIALLY JUSTIFIED OR THAT OTHER CIRCUMSTANCES MAKE AN AWARD OF EXPENSES UNJUST.

B.  IF THE COURT MAKES A FINDING AGAINST ANY LITIGANT UNDER SUBSECTION A OF THIS SECTION, IT MAY ALSO:

1.  IMPOSE ADDITIONAL FINANCIAL SANCTIONS ON BEHALF OF AN AGGRIEVED PARTY WHO CAN DEMONSTRATE ECONOMIC LOSS DIRECTLY ATTRIBUTABLE TO THE LITIGANT’S MISCONDUCT.

2.  INSTITUTE CIVIL CONTEMPT PROCEEDINGS ON ITS OWN INITIATIVE OR ON REQUEST OF AN AGGRIEVED PARTY, WITH PROPER NOTICE AND AN OPPORTUNITY TO BE HEARD.

3.  MODIFY LEGAL DECISION-MAKING OR PARENTING TIME IF THAT MODIFICATION WOULD ALSO SERVE THE BEST INTERESTS OF THE CHILD.

C.  FOR THE PURPOSES OF THIS SECTION, A FALSE CLAIM DOES NOT MEAN A CLAIM THAT IS MERELY UNSUBSTANTIATED.

D.  THIS SECTION DOES NOT PREVENT THE COURT FROM AWARDING COSTS AND ATTORNEY FEES OR IMPOSING OTHER SANCTIONS IF AUTHORIZED ELSEWHERE BY STATE OR FEDERAL LAW.

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