On May 9, 2012, Senate Bill 1127 was signed by Governor Jan
Brewer. Effective January 1, 2013,
Arizona’s new custody statute, Title 25, will eliminate the legal concept of
“custody” from divorce proceedings.
Instead of relying on the term “custody,” the term “decision-making”
will now take its place. In addition, SB1127 replaces the commonly referenced
term “visitation” to “parenting time.”
Legal decision-making is now defined as the “… legal right
and responsibility to make all nonemergency legal decisions for a child
including those regarding education, health care, religious training and
personal care decisions.” In joint legal decision-making, “… both parents share
in the decision-making and neither party’s rights or responsibilities are
superior except to specified decisions as set forth by the court or the parents
in the final judgment or order.” Under
SB1127, “sole legal decision-making means one parent has the legal right and
responsibility to make major decisions for a child.”
Parenting time now means the schedule of time during which
each parent has access to a child at specified times. Each parent during their scheduled parenting
time is responsible for providing the child with food, clothing and shelter and
may make routine decisions concerning the child’s care.
The term “visitation” is now preserved for “… a schedule of
time that occurs with a child by someone other than a legal parent.” Grandparent visitation rights and non legal
parent (in loco parentis) rights are now
covered in one section, section 25-409,” entitled “Third Party Rights.”
An important motivation underscoring the change in law is a need
to shift the perspective of ownership associated with the word “custody.” The
change supports parents to focus on their rights and responsibilities as
parents, rather than their rights and entitlements as parents. The word “custody” sets a tone of
power-struggle, which covertly or overtly, can put the children at risk to be
in the middle. When all is said and done, however, the primary factor continues
to be children’s rights as highlighted in the constant and unchanged language
“best interests of the child.”
Section 25-403 lists out the factors the court must look to
in order to make a determination on legal decision-making and parenting time,
with a focus on the child’s physical and emotional well-being. The new law eliminates the requirement for
the court to factor in the wishes of the child’s parent or parents as to custody,
and whether or not a parent has provided primary care of the child. However, the court must still consider “[t]he
past, present and potential future relationship between the parent and the
child.”
A newly drafted section 25-403.01 has been added providing
the court factors to consider when deciding to award sole or joint legal
decision-making. Unlike section 25-403,
which focuses on the dynamics of the child’s best interests, this section
focuses more on the interpersonal relationship between parents and whether or
not their specific and personal dynamic will allow for parents to work together
and make decisions jointly. SB1127 provides
an additional factor regarding “[t]he past, present and future abilities of the
parents to cooperate in decision-making about the child to the extent required
by the order of joint legal decision-making.”
Importantly, and without regard to who has legal
decision-making authority, each parent “… is entitled to reasonable parenting
time to ensure that the minor child has substantial, frequent, meaningful and
continuing contact unless the court finds, after a hearing, that parenting time
would endanger the child’s physical, mental, moral or emotional health.” The
court shall not consider either the parent’s or the child’s gender when
approving parenting plans.
While I have shared with you some of the highlights, you
will need to familiarize yourself with the new statutory language in order to
understand the full scope of all the little nuances and changes. As for the effect it will have on your active
cases, the court will not apply the new law based on the time when the matter
was initiated, but will apply the new law when making a final decision or entering
an order as of January 1, 2013.
Will this change in law allow you to reopen a matter? In all likelihood, the answer is no, but time
will tell. These changes are a work in progress and the language will likely
change again in an attempt to rectify any shortcomings that come to light over
the next year.
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