As of today, July 31, 2018, we have new pronouncements from the Arizona Court of Appeals about equal parenting time. (Hint: They’re in favor of it.) The findings don’t bode well for those parents who oppose equal time sharing arrangements (in cases where there are no provable parenting deficits) on the basis that “the children can’t handle it”, “the children will do better with a ‘home base’ or ‘primary residence’” or “the children shouldn’t be forced to have ‘two homes’”. (There’s not a practicing family attorney in Arizona — or possibly anywhere — who doesn’t hear those statements several times a month.) Even if a trial court can be persuaded that those arguments support something other than equal parenting time, the Court of Appeals may overturn that decision. Barron v. Barron, July 31, 2018 (Court of Appeals, Division 1)
The Court of Appeals found that a trial court’s application of a presumption against equal parenting time, in the form of a finding that “children should have a primary home and bedroom . . . as opposed to forcing children to divide their time and things and clothing between two homes” was error. The case was sent back to the trial court for new findings that did not presume equal parenting time is against a child’s best interests. Nothing in the law allows a court to presume that the children need a primary residence.
Mother had not alleged that Father was a bad parent or had an inappropriate home. Her arguments to be the primary residential parent were focused on the children’s need for consistency. The Court of Appeals rejected that basis. “When each parent can provide a safe, loving and appropriate home . . . there is no place in a parenting time order for a presumption that ‘stability and continuity’ require the children to spend more time in one home than the other.”
The trial court had also, unfortunately, made a finding that these children, all girls, would “naturally . . . gravitate more to Mother as they mature.” This finding of gender bias did not sit well with the appellate court, which found the generalizations about gender preference to be overbroad and in direct violation of the Arizona statute’s mandate that gender of a parent or child will not be a factor in a parenting plan order. The Court of Appeals noted that if the logic that female children would “gravitate” towards the Mother was followed, then “with all things being equal, the gender of the children necessarily would drive parenting time, a governing principle flatly inconsistent with principles of gender equality and 25-403.02(B).” [Not to mention that “tender years” presumptions, prevalent in custody determinations several decades ago, disappeared with the advent of modern dissolution statutes starting, at the latest, in the 1970s.] One wonders if this finding alone was so egregious as to affect the Court of Appeals’ reversals of other trial court findings.
Another of Mother’s arguments for primary parenting time which had been adopted by the trial court was her argument that she was the children’s primary caretaker during the marriage. This argument is generally known as the “approximation rule” and it was promoted by the American Law Institute in its scholarly work “Principles of the Law of Family Dissolution” in 2002. The approximation rule was adopted by only one state’s legislature (West Virginia) and has never been an established guiding principle in awarding parenting time. Some of the major arguments against the approximation rule were cited in this decision, including the fact that a family’s circumstances generally change dramatically after separation and divorce, so trying to approximate the children’s previous circumstances is largely meaningless. “Dissolution necessarily will disrupt the family dynamic whenever one parent has been the primary earner while the other has stayed home to care for the children. Upon dissolution, the wage earner usually must find child care and the stay-at-home parent must find work.” While the court naturally considers each parent’s prior relationship with a child as one factor in determining parenting time, the Barron decision states that the trial court cannot and should not default to giving more time to a stay-at-home parent as a presumption, based on past history.
Another finding of the trial court made an adverse finding against Father’s parenting time because his parents would necessarily act as care providers at times during his absence. The Court of Appeals found this to be error, as both parents’ jobs would necessitate the use of child care.
And finally, the trial court had denied equal parenting time based on a finding, unsupported by anything other than Mother’s testimony, that the children “have not fully adjusted to equal parenting time during temporary orders” and that the children “want and need to spend more time with Mother”. The Court of Appeals specifically noted the absence of expert testimony such as a counselor or therapist on this issue in rejecting this finding as unsupported by the evidence.
An interesting (and unrelated) finding in this decision regarding the reasonableness — or unreasonableness — of a parent’s actions in these cases notes that the trial court could have found Husband to be unreasonable in his failure to allow Mother additional parenting time while they were awaiting trial. “Although Husband was strictly following the temporary orders in these instances, the court properly could view his conduct as unreasonably inflexible.” So, a parent can potentially be found unreasonable even when following explicit court orders—just another potential pitfall for a parent who wants to do the right thing, which usually means follow court orders.
 “Tender years” presumptions generally followed the school of thought (now debunked and antiquated) that girls were more likely to need, and therefore have custody awarded to, their mothers, while very young boys needed their mothers until a certain age, but after that age, their custody would be awarded to Father, presumably to learn a trade or how to shave.