Know the Laws: Arizona
UPDATED February 19, 2013
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. Note: As of 1/1/13, Arizona passed laws that changed the terms for custody and visitation (among other changes.) Custody is now known as "legal decision-making” and visitation is now known as “parenting time.” For additional information on legal decision-making and parenting time, including the pros and cons of sample parenting time schedules, you can read the AZ Supreme Court's guide, Planning for Parenting Time: Arizona’s Guide for Parents Living Apart (2009).
At least one of the child's parents is entitled to legal decision-making, unless there is clear and compelling (convincing) evidence that awarding legal decision-making to a legal parent is not consistent with the child's best interests.
* A.R.S. § 25-409(B)
Four conditions must be met for a non-parent to apply for legal decision-making rights or placement of the child:
1) The person who is filing must stand "in loco parentis" to the child.* To be "in loco parentis," a person must have:
2) The petitioner must prove that it is detrimental (harmful) to the child to remain in the custody of either legal parent who wishes to keep or acquire (get) legal decision-making;
3) No court has entered or approved an order concerning legal decision-making or parenting time within the previous one year before the petitioner files (unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health); and
4) One of the following situations applies:
Even though it may be difficult to get legal decision-making over a child if you are a child's relative (other than a parent), you may be able to get visitation if you are a grandparent, great-grandparent, or another (non-parent) third party. See Can a grandparent (or other non-parent third party) get visitation? for more information.
* A.R.S. § 25-409(A)
** A.R.S. § 25-401(1)
In certain situations, a person other than a legal parent may petition the superior court for visitation with a child. The judge may grant visitation if the judge believes that visitation is in the best interests of the child and any one of the following are true:
In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents' opinion of what serves their child's best interests and consider all relevant factors including:
* A.R.S. § 25-409(C)
** A.R.S. § 25-409(E)
Possibly. While the judge will strongly consider the safety and well-being of the child and of the victim of the act of domestic violence,* it is possible that a parent who has committed violence will get legal decision-making or parenting time.
If the parent who committed an act of domestic violence against the other parent is trying to get (joint or sole) legal decision-making, the judge will assume that awarding legal decision-making to that parent is not in the best interest of the child.*1 However, the abusive parent can try to present evidence to change the judge’s mind. When making his/her decision, the judge will consider whether the abusive parent:
The court will not grant joint legal decision-making if it finds that significant domestic violence has occurred or if there is a significant history of domestic violence.*3
If the parent who committed an act of domestic violence is seeking parenting time, that parent has to prove to the judge that parenting time will not endanger the child or significantly harm the child's emotional development. The judge may place conditions on parenting time that best protects the child and the other parent from further harm.*4
Courts generally presume that it is in the child's best interest to see both parents regularly, so they favor providing both parents with some form of legal decision-making and parenting time. Courts will only deny parenting time when there is substantial (important) evidence that parenting time would be harmful to your child.
The judge has to consider the impact of domestic violence on your child when deciding if there should be parenting time. If a judge is unsure about whether parenting time could be harmful to your child, s/he may establish specific parenting time rules that s/he thinks are in the best interest of your child. The judge can:
* A.R.S. § 25-403.03(B)
*1 A.R.S. § 25-403.03(D)
*2 A.R.S. § 25-403.03(E)
*3 A.R.S. § 25-403.03(A)
*4 A.R.S. § 25-403.03(F)
Possibly. However, if the judge determines that a parent has abused drugs or alcohol or has been convicted of certain drug offenses within the past twelve months before the petition for legal decision-making or parenting time is filed, the judge will assume that it is not in the child's best interests for that parent to get sole or joint legal decision-making. However, the parent who is accused of abusing drugs or alcohol can try to present evidence to change the judge's mind. In that case, the judge must at least consider the following evidence:
Possibly but it depends on the circumstances. If the parent is a registered sex offender or if the parent murdered the other parent, the judge can only grant sole or joint legal decision-making of a child or unsupervised parenting time if the judge find that there is no significant risk to the child.
In the case of a parent who was convicted of murdering the other parent, the judge can consider whether the convicted parent was a victim of domestic violence at the hands of the murdered parent, for example .
In addition to the judge considering a case where a parent is a sex offender, the judge will also consider a situation where a parent involves himself/herself with a registered sex offender. A child's parent or custodian must immediately notify the other parent or custodian if s/he knows that a convicted or registered sex offender (or a person who has been convicted of a dangerous crime against children as defined on our AZ Statutes page, section 13-705) may have access to the child. The parent or custodian must provide notice by first class mail, return receipt requested, by electronic means to an electronic mail address that the recipient provided to the parent or custodian for notification purposes or by other communication accepted by the court.*
* A.R.S. § 25-403.05