The Tao of Family Court

by Annette Burns on September 16, 2010

This is an article I recently wrote for the AzAFCC newsletter, covering general questions that family law professionals get all the time.

Several professionals who work with families were asked to submit the most common questions that they receive about court cases, custody, parenting time and parenting.  These are the questions we are asked to answer, over and over.    The jobs we do as divorce professionals frequently overlap:  Professionals who are not attorneys are asked legal questions, and attorneys are asked to give parenting advice.  The questions and answers listed below are an attempt to cover the most common issues, to allow litigants to get the very general advice they need.  Litigants are advised that this is general information and not legal advice, and to get specific information about their case will require them to consult an attorney.

What’s the difference between an Order of Protection and an Injunction Against Harassment? 

An Order of Protection (ARS 13-3601) can be issued by the court against people who have certain relationships between them:   Married, formerly married, living together, having a baby together (pregnant), formerly living together, have a child together, related by blood (parent, grandparent, brother or sister), related by marriage (in-laws).   There is also a category for Orders of Protection between people who currently or previously had “a romantic or sexual relationship” (even if they didn’t live together), and there are some factors in the statute to decide if that category exists.

An Injunction Against Harassment (ARS 12-1809) doesn’t require any certain relationship between the person who wants the Injunction and other person.    An Injunction can be issued against a neighbor, former co-worker, boyfriend or girlfriend of an ex-spouse, and pretty much anyone who is causing the harassment.

What’s the difference between a best interests’ attorney and the attorney for a minor child?

A best interests’ attorney (BIA) is assigned by the court to do certain fact-finding and appear in court on behalf of the child’s best interests. A BIA is often appointed when the children are too young to express their wishes in the action.    The BIA’s job is to represent the best interests in court, by examining and calling witnesses, and by submitting a position statement to the Court about what the attorney believes is in the children’s best interests.  The BIA does not testify in court, but only acts as an attorney in court proceedings.

The attorney for a minor child represents the child just as if the child were an adult.  If the child is old enough to express preferences or wishes about the outcome of the action, then the attorney for the minor child promotes those wishes in court just as an attorney for an adult does.    An attorney is not usually appointed to represent a minor where the minor is too young or too immature to appropriately express his or her wishes.

Both types of attorneys for children are covered in Arizona Rules of Family Law Procedure, Rule 10.

How do those things differ from a Guardian ad litem (GAL) or a Parenting Coordinator?

A Parenting Coordinator does not represent the child at all, but serves as a neutral case management and decision-making process for the parents.  The child’s best interests are always considered, and the Parenting Coordinator also helps implement and enforce the parenting time plan that the parties have.

Guardians ad litem (GALs) are no longer appointed or used in family cases.  The appointment of a court-appointed advisor pursuant to Rule 10, Arizona Rules of Family Law Procedure, may be appropriate if the court wants a professional to investigate certain facts and make a report to the court in a certain case.

What are the factors the court considers in making a custody or parenting time award?

There are 11 factors listed in the Arizona statute on custody (ARS 25-403 ).  They are:

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

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

3. 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.

4. The child's adjustment to home, school and community.

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.

8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

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

10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02. (This refers to another Arizona statute, ARS 13-2907.02)

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

The first part of the custody statute (ARS 25-403) refers to the Court making the decision about custody based on “best interests of the child”.  That term is very vague and does not provide much guidance to the court or to the parents.   It is very common for each parent to state that what he or she wants is “in the best interests of the child”.   It is more helpful to the court for the parents to give specific instances of the child’s needs and how those needs will be met by a particular custody or parenting time plan.

What is the difference between sole and joint custody?

There are actually three categories of custody under Arizona law (ARS 25-403 ).  They are:

Sole custody.  One parent is given decision-making authority about the child.

Joint Legal Custody.    Both parents are to make decisions about the child jointly.

Joint physical custody.  Both parents are to make decisions about the child jointly; AND the parenting time for the child is approximately equal between the two households.

Sole custody does not mean that the non-custodial parent does not see the child.   Sole custody refers only to decision-making.  In fact, one parent can have approximately equal parenting time with the child (alternating weeks, for example), with the other parent having sole custody.  

Joint legal custody does not mean the child lives equal time with each parent.   Joint legal custody refers only to decision-making.   Even in a joint legal custody situation, child might live most of the time with one parent.

Arizona law was recently changed, with the following new language about custody:  “It is . . . the declared public policy of this state and the general purpose of [these laws] that absent evidence to the contrary, it is in a child’s best interest:   1.  To have substantial, frequent, meaningful and continuing parenting time with both parents.   2. To have both parents participate in decision-making about the child.” This new language appears as a part of ARS Section 25-103.

What is the difference between visitation and parenting time?

There is no difference.  Arizona law does not refer to “visitation” any longer.   The time that each parent spends with the child is always called “parenting time”.

What does “first right of refusal” mean, and should I put one in my parenting plan?

First right of refusal is more accurately called “first opportunity for caretaking” for the child.    It means that if the custodial parent needs to leave the child during his/ her parenting time, the other parent must be offered the opportunity to have the child first, before some other caretaker is called.  The noncustodial parent is not required to do the caretaking, but s/he needs to have the first option to do that, if the “first right” language is in a Parenting Plan.   If the noncustodial parent turns down the offer of caretaking, then the custodial parent can ask someone else to provide the care.

The first right of caretaking has some unintended consequences that should be carefully discussed before you put this provision in your Parenting Plan.  For one thing, the amount of time that triggers this provision should be stated in the Plan.    Most people would agree that this provision shouldn’t apply if the child is being left with someone briefly (an hour or two) while the custodial parent is out.   It is possible that the only time you want this provision to apply is if you need an overnight caretaker for a brief trip.    If your child regularly goes to a child care facility (preschool, day care, nanny, or after-school care), the Plan should state whether the first right of caretaking applies while the child is in those facilities, or if it only applies for evening and weekend care.

If the “first opportunity” language is in your Plan, it should also provide who drives the child each way for the noncustodial parent’s care.  

So who is the caretaker for the “first right”—-Can I leave my children with their grandparents, or my new spouse, or do I have to call my ex first all the time?

Your Plan should also specifically state who can care for the child without triggering the “first right” provision.    Some parents agree that a stepparent or grandparent is considered an extension of the custodial parent and so the child can be left with those people during the custodial parent’s time, without having to offer the right of caretaking to the other parent.  In those cases, the parents’ intent is that the child not be left with a stranger/ nonrelative, unless the other parent has first been offered the right of caretaking.

My parenting plan says that we have joint custody but that the other parent has “final decision making authority”.   What does this mean?

Giving one parent “final decision-making authority” in a joint legal custody situation means that the parents still must discuss the issue and offer each other suggestions about the issue.  That phrase does not mean that the parent with final decision-making authority can simply act on an issue without discussing it with the other parent.  These decisions usually involve school, day care, religion or medical issues.    The parents must discuss the issue (either in person or by email) and exchange their ideas and positions on the issue.  If after reasonable exchange and discussion the parents disagree on the action to be taken, the parent with final decision-making authority makes the final call.

What does child support cover?   I pay child support, but the other parent keeps asking me to pay for shoes, sports fees, and other things.

Generally, child support is designed to cover the child’s food, regular clothing and shoes, lunches, and personal care costs (haircuts and over-the-counter medications) at the home of the parent who receives support.    The parent who pays child support is also expected to provide those routine things for the child at the payor’s own home.    Child support generally is not intended to cover the cost of the child’s medical and prescription costs that aren’t covered by insurance.  A child support order may state whether the costs of the child’s sports, activity and extracurricular costs are included in the child support amount, or whether the parents are to share those costs in addition to child support.  If a child needs special clothing, shoes or equipment for an activity or trip, the parents need to reach an agreement about how much each parent will pay towards those expenses, before the activity is entered into by the child.

What do I do if my child won’t go when it’s time to go to the other parent’s house?   I can’t force her to go.

Decisions about going to the other parent’s home are the parents’ decisions and not the child’s.    A child cannot see that as her option.  Going to the other parent’s home on the agreed-upon schedule needs to be treated the same way as having the child go to school.    Following the schedule is an expectation which, if violated, should have serious consequences for the child.   If a child resists going to the other parent, the same consequences have to apply as if the child was refusing to go to school, or to a doctor’s appointment.  If a child persistently or violently resists going to the other parent’s home, it is potentially a serious problem that needs to be addressed early, by a counselor who can work with the entire family.

What if my child is too sick to go to the other parent’s house?

Both parents are presumed to be capable of caring for a sick child.   If a child seems too sick to be transported, the parents need to consult about whether they need to delay the start of parenting time, or how they will transport the child to the other home.  If a child is too sick to be at school or child care, the parent who is assigned that parenting time is the presumed caretaker during the child’s sick time.

Can the other parent take my child somewhere and not tell me?

Generally, the parent who has parenting time is free to go places with the child during his and her own parenting time.   It is good parenting practice that if the child will be leaving the immediate metropolitan area, the other parent should be given information about where the child will be and for what period of time.

Can the other parent let our child stay overnight somewhere else and I don’t know where she is?

If a child is spending an overnight anywhere other than the custodial parent’s home, the custodial parent should notify the noncustodial parent about where the child will be sleeping.

Can the other parent take out child out of the country without my permission?

Generally, no, unless the Parenting Plan or a court order allows this.   The State Department has specific information for parents about out of country travel, including a notification program in the event a passport is issued for a minor child.   More information can be found at State Department

Can I take my child to counseling without the other parent giving permission or knowing about it?

Generally, one parent cannot obtain counseling for the child without the other parent giving permission, if the parents have joint legal custody.  Counseling is considered a medical decision that should be made jointly.  If one parent believes the child should be in counseling and the other will not agree, a Parenting Coordinator can be of assistance, and the court can order the counseling if it’s deemed beneficial to the child.   Either parent is allowed to obtain emergency medical care for the child, so emergency counseling may be permitted.   If that happens, the other parent must be told of the emergency care as soon as possible afterwards.

I want “full custody”.    If I have full custody, I get to decide when the other parent sees our child, right?

“Full custody” is called sole custody.  As stated earlier in this article, the legal presumption in Arizona is that both parents will have substantial time with the child and will make joint decisions about the child.   While a parent still has the right to ask for sole custody from the court, a strong case must be made that sole custody is in the child’s best interests.  A parent will sole custody does not decide when the other parent gets to see the child.   Even with sole custody, the noncustodial parent will generally still have a specific parenting time schedule.

If we mutually agree to change our parenting time schedule, are we in violation of a court order?

No.  The parents are free to change a parenting time schedule (including holidays, summer vacations, and the like) by agreement if they want.  It is always best to have all changes agreed to in writing so that there are no misunderstandings about what has been agreed to.

What’s the difference (or advantages or disadvantages) of mediation vs. having a Parenting Coordinator?

A mediator’s job is to try and facilitate an agreement between the parents.  If the parents don’t reach agreements, the mediator does not make a decision and does not report to the court about the mediation.   A Parenting Coordinator also tries to facilitate an agreement between the parents, but if that doesn’t happen, the Parenting Coordinator is authorized to file a report with the Court and to make recommendations about what orders should be entered.  The mediation process generally takes place over only one or two sessions, but the Parenting Coordinator is appointed by the Court for a specific period of time (usually one year) and therefore has more of an ongoing relationship with the parties than a mediator.

What are co-parenting, parallel parenting and cooperative parenting?

Co-parenting is not a legal term, but it appears in some legal documents.   Co-parenting is any joint method that two parents use to communicate about their child and do all the things that parents do for children —- get them to their activities, feed them, decide on bedtimes, and discipline them .     It’s a method of sharing parenting responsibilities.    Co-parenting can be very cooperative, or it can be highly stressful. 

Two major forms of co-parenting are parallel parenting and cooperative parenting.  Cooperative co-parenting means the parents get along fairly well, the level of conflict between them is relatively low (or under control), and they are able to communicate about the children.   The parents may attend school functions and doctor’s appointments together, and may attempt to make their household routines as similar as possible (such as bedtimes, discipline, homework rules, and the like).  If a problem arises, the parents are more likely to speak directly and offer each other suggestions about how to address an issue.

Parallel parenting is sometimes suggested where the parents cannot completely disengage from the anger and conflict that led to their break-up.   In a parallel parenting situation, each parent has responsibility for the children at their specific times, but there is little non-essential communication between the parents. The parents do communicate (often only by email) important information about the children, including health information, medical appointments, school activities and schedules.  Each parent is responsible for communicating directly with schools and teachers.   With parallel parenting, there is little communication about each household’s routines and other day-to-day matters.     Neither parent comments on or tries to tell the other parent how to parent or how to do something better or differently.    For a very young child, a Parent Notebook may be passed back and forth which includes written information about feeding times, type of food, nap times, and other essential information.

If the parents are unable to effectively exchange information or schedules by email, a third-party resource such as Our Family Wizard (a website-based calendar program) may be used to monitor and pass on information.   Parenting Coordinators are often appointed by the Court to monitor and help parents who are using mostly parallel parenting but are still having difficulty.

Isn’t it true that if sole custody is awarded, the person with sole custody can move out of state with the child?

No.   Even if a person has sole custody, an out of state move requires the written agreement of both parents, or a court order.    The statute covering out of state moves is ARS 25-408 .

How old does a child have to be to make his own decision about who to live with?

The child’s wishes about his custody or living arrangements is one factor (out of 11) for the court to consider in a custody award.   There is no specific age at which the child’s wishes simply rule.

Where can I find all these Arizona statutes?  And what’s “ARS?”

ARS stands for “Arizona Revised Statutes”, and they are Arizona’s laws.   Arizona Statutes can be found at ARS

Title 25 (listed on that web page) contains most of the statutes relating to divorce, custody, spousal maintenance (alimony), child support, and parenting time.

Arizona also has a set of Rules that apply to family law cases, and they are called the Arizona Rules of Family Law Procedure  

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