Know the Laws: Arizona
UPDATED September 18, 2009
As with everything on this site, this information is not legal advice. Custody is complicated and it is important to try to find an experienced lawyer to help you with your case. To read information on finding a lawyer, please click on the Where to Find Help tab at the top of this page.
- General Information and Definitions
- Who Can Get Custody or Visitation
- How the Custody Process Works
- What Happens After a Custody Order is in Place
General Information and Definitions
back to topWhat is custody? What types are there?
Custody is the legal responsibility for the care and welfare of your child (under 18). The court may give custody of your child to one or both parents. There are two types of custody: legal and physical.
Legal custody is the right to make major decisions about your child, including education, healthcare, and religion. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery, and what kind of religious training your child receives.
Physical custody refers to who your child lives with on a day-to-day basis.
back to topWhat options are there for legal custody and physical custody?
Sole Legal Custody. The court orders that one parent is responsible for making the major decisions about the care and welfare of the child. Although both parents may talk about these issues, only the parent granted sole legal custody has the authority to make a final decision if the parents cannot agree. A parent with sole legal custody is sometimes called the child's "custodial parent."
Joint Custody. This means joint legal custody or joint physical custody or both.*
Joint Legal Custody. Each parent has the same rights and responsibilities for making major decisions regarding the care and welfare of the child. With joint legal custody, neither parent's rights are superior to those of the other parent. In the best interest of the child, the court may direct that certain decisions be made by only one parent, even when joint legal custody is granted. Having joint legal custody does not mean that the parents also have joint physical custody or equal parenting time. Joint legal custody usually involves the parents talking with each other and making decisions jointly. Since cases of domestic violence involve control, fear and an imbalance of power, joint custody usually is not a good option.
Joint Physical Custody. In this situation, the place where the child lives is split between the parents. This is usually done in a way that allows the child to have equal contact with both parents. Like joint legal custody, joint physical custody works best when both parents are able to put aside their differences and plan together for the welfare of the child. If you have physical custody and the other parent has visitation rights (parenting time), then this is not joint physical custody. This is true even if the other parent has a large amount of visitation time.*
Note: Arizona law does not favor one type of custody over another. In addition, the Court does not prefer a parent as a custodian because of that parent's sex.**
* A.R.S. § 25-402; See also A.R.S. § 25-403.02 for more information about parenting plans
** A.R.S. § 25-403.01
back to topWhat are the differences between custody and visitation?
Custody can include the right to make decisions about your child (legal custody) and the right to have you child live with you (physical custody). A parent who does not have physical custody may be entitled to visitation (also known as "parenting time").* This means that even though your child lives with one parent, your child still gets to spend time with the other parent.
It is also possible that you share legal custody of your child with the parent who has visitation. In this case, your child lives with one parent and spends time with the other parent, but both parents have the right to make important decisions about their child.
* A.R.S. § 25-408
back to topWhat are the advantages and disadvantages of getting a custody order?
There are many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they don't want to get the courts involved. These people may have an informal agreement that works well for them or may think going to court will provoke the other parent.
There are also many advantages to getting a custody order:
- The right to make decisions about your child
- The right to have your child live with you
If you decide not to get a custody order, then you and the other parent likely have equal rights to making decisions and living arrangements. The exception to this is when paternity has not been legally established. To understand whether paternity has been “established” for your child, see below How is paternity (legal fatherhood) established?
You do not have to have a custody order to file for child support.
back to topHow is paternity (legal fatherhood) established?
There are several ways to establish paternity (legal fatherhood) in Arizona. In some situations, either parent will file a petition in court to have paternity legally established. In other situations, filing a court petition is not necessary because paternity is presumed (assumed).
Note: The father, the child's guardian, or the State may also file a petition to establish paternity.
Paternity is presumed (assumed) when:
- The man and the mother of the child were married at any point in the ten months immediately before the birth of the child or the child was born within ten months after the marriage ended;
- A genetic test (DNA test) states that there is at least a 95% likelihood that he is the father;
- The birth certificate of a child born to an unmarried woman is signed by both parents; or
- The parents voluntarily acknowledge paternity in a signed statement that is notarized or witnessed. *1
Note: Even if one of these situations apply, the paternity may be rejected by the judge if there is “clear and convincing” evidence that leads the him/her to believe differently.*2
Paternity can be established in court when:
- A woman who is pregnant or already gave birth to the child files a petition to establish paternity and:
- The father does not file a response to the court papers or appear in court;
- The father files a response admitting paternity;*3 or
- The court orders genetic tests (DNA tests) and either :
- those tests show that there is at least a 95% likelihood that he is the father *4 or
- the father, for no good reason, doesn’t take the DNA test.*5
*1 A.R.S. §25-814(A)
*2 A.R.S. §25-814(C)
*3 A.R.S. §25-806 and §25-813(1)
*4 A.R.S. §25-807(D)
*5 A.R.S. §25-813(2)