In Arizona, custody is known as "legal decision-making” and visitation is known as “parenting time.” 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 Places that Help tab at the top of this page. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
General information and definitions
What is legal decision-making? What types are there?
Legal decision-making 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 decision-making are: where your child goes to school, whether your child gets surgery, and what kind of religious training your child receives. There are two types of legal decision-making: sole or joint.
Note: In accordance with federal codes and other states, legal decision-making means “legal custody.”
What was known as physical custody is now associated with parenting time (what used to be known as visitation). The times and places of parenting time, the amount of parenting time for each parent, and which house the child resides in are determined in what is called a "parenting plan."
What options are there for legal decision-making and parenting time?
Sole Legal Decision-Making. This is when 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 who is granted sole legal decision-making has the authority to make a final decision if the parents cannot agree.
Joint Legal Decision-Making. This is when each parent has the same rights and responsibilities for making major decisions regarding the care and welfare of the child. With joint legal decision-making, 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 decision-making is granted. Having joint legal decision-making does not mean that the parents also have equal parenting time. Joint legal decision-making 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 legal decision-making usually is not the best option.
Parenting Time. This refers to the schedule of time that each parent will have with their child and where the scheduled time will take place. A parent who is not awarded sole legal decision-making or who has joint legal decision-making is entitled to some form of meaningful parenting time with their child. However, joint decision-making does not mean the parents will automatically have equal parenting time. If the judge finds that parenting time could endanger the child, such as if there has been past domestic violence or child abuse, the court can order no parenting time or supervised parenting time.1
1 A.R.S. § 25-401; See also A.R.S. § 25-403.02 for more information about parenting plans
What are the differences between legal decision-making and parenting time?
Legal decision-making can include the right to make decisions about your child (this may be called legal custody in other states) and the right to have your child live with you (this may be called physical custody in other states). Parenting time refers to the time that each parent spends with his/her child. It is possible that a parent can have joint legal decision-making, which gives both parents the right to make important decisions about their child, even if the child does not live with that parent.
1 A.R.S. § 25-401
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for legal decision-making or parenting time, you may not have much to lose by asking that the parenting time be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised parenting time. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the parenting time supervised and how long supervised parenting time would last, based on the facts of your case.
In the majority of cases, supervised parenting time is only a temporary measure. Although the exact order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. If the judge does order that supervision be provided by an individual, you may want to research who provides supervised visitation near you and make sure it will be a place that will be able to provide safety to you and your children. A reminder: at the end of a case, the other parent may end up with more frequent and/or longer parenting time than s/he had before you went into court or even receive some form of legal decision-making authority if s/he is perceived as having the ability to safely be around the child/ren.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for legal decision-making and supervised parenting time is appropriate. To find out what may be best in your situation, please go to AZ Finding a Lawyer to seek out legal advice.
What are the advantages and disadvantages of getting a legal decision-making and parenting time order?
There are many reasons people choose not to get a legal decision-making and parenting time order from a court. Some people decide not to get a legal decision-making and parenting time 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 legal decision-making and parenting time order:
- The right to make decisions about your child and
- The right to have your child live with you.
If you decide not to get a legal decision-making and parenting time order, then you and the other parent may likely have equal rights to making decisions and living arrangements. The exception to this can be 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?
Note: You do not have to have a legal decision-making and parenting time order to file for child support.
How 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)
What is mediation?
Mediation is a process by which parents attempt to reach an agreement relating to legal decision-making and parenting time of their child. Mediation usually involves the help of a trained professional (a "mediator") who guides the discussion process between the parents and tries to come to a compromise that both parents are happy with. Mediation is not required for legal decision-making and parenting time cases in Arizona.
Mediation in domestic violence situations often does not work since one parent is usually afraid of the other and may not feel comfortable or safe disagreeing with the abusive parent. If you are or have been the victim of domestic violence, make sure the judge knows this. Arizona law does not allow the judge to order joint counseling in a domestic violence situation. If the judge does so, you may be able to file a petition to prevent it.1 However, if you are a victim and you choose to go to mediation, you can attend the mediation proceeding at a different time and location from the abuser.2
1 A.R.S. § 25-403.03(G)
2 See Arizona Coalition Against Domestic Violence, Advocates in Domestic Violence Cases: A Lay Legal Advocates’ Guide to Arizona Law (2012)
Who can get legal decision-making or parenting time
Who can get legal decision-making?
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.
1 A.R.S. § 25-409(B)
Can I file for legal decision-making of a child if I am not the parent?
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.1 To be "in loco parentis," a person must have:
- been treated as a parent by the child; and
- formed a meaningful parental relationship with the child for a substantial period of time;2
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:
- One of the parents is dead;
- The parents are not married to one another at the time of filing; or
- The parents are involved in a separate legal proceeding regarding divorce or legal separation.1
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.
1 A.R.S. § 25-409(A)
2 A.R.S. § 25-401(1)
Can a grandparent (or other non-parent third party) get visitation?
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:
- One of the legal parents is dead or has been missing for at least three months (and reported as missing to a law enforcement agency);
- The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed;
- For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months; or
- For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.1
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:
- The historical relationship, if any, between the child and the person seeking visitation;
- The motivation of the person seeking visitation;
- The motivation of the person denying visitation;
- The amount of visitation time requested and the possible negative impact that visitation will have on the child's usual activities; and
- The benefit in maintaining an extended family relationship (if one or both of the child's parents are dead).2
1 A.R.S. § 25-409(C)
2 A.R.S. § 25-409(E)
Can a parent who committed violence get legal decision-making or parenting time?
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,1 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.2 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:
- has shown that being granted legal decision-making or substantially equal parenting time is in the child’s best interests;
- has successfully completed a batterer’s prevention program;
- has successfully completed a program for alcohol or drug abuse prevention (if required by the court);
- has successfully completed a parenting class (if required by the court);
- has a protective order against him/her if that parent is on probation, parole or community supervision; and
- has committed any further acts of domestic violence.3
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.4
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.5
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:
- order that an exchange of your child must occur in a protected setting;
- order that a specific agency must supervise parenting time. If the judge allows a family or household member to supervise parenting time, the judge should make conditions that this person must follow during parenting time;
- order the abusive parent to attend and complete appropriate counseling programs;
- order the abusive parent to not drink alcohol, take drugs, or have them is his/her possession during parenting time and for twenty-four hours before the beginning of his/her parenting time;
- order the abusive parent to pay a fee to the court to help with the costs of supervised parenting time;
- not allow overnight parenting time with the abusive parent;
- order the abusive parent to place a bond (put money with the court) for the child’s safe return;
- order that the court keep the address of you and your child confidential; and/or
- order any other rules that the judge feels are necessary to protect you, your child, and any other family or household member.5
1 A.R.S. § 25-403.03(B)
2 A.R.S. § 25-403.03(D)
3 A.R.S. § 25-403.03(E)
4 A.R.S. § 25-403.03(A)
5 A.R.S. § 25-403.03(F)
Can a parent who abuses drugs or alcohol get legal decision-making?
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:
- the absence of any conviction of any other drug offense during the previous five years (aside from the one s/he may have been convicted of within the year before filing the petition);
- results of random drug testing for a six-month period, which indicate that the person is not using drugs; and
- results of alcohol or drug screening provided by a facility approved by the department of health services.2
1 A.R.S. § 25-403.04(A)
2 A.R.S. § 25-403.04(B)
Can a parent who is a registered sex offender or who murdered the other parent get legal decision-making or parenting time?
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.1
1 A.R.S. § 25-403.05
If my child was conceived from rape, can the offender get legal decision-making or parenting time?
The law says that if the offender was convicted of the crime of sexual assault and that sexual assault led to your child being conceived, the convicted person has no rights to legal decision-making or parenting time.1 However, if the offender was not criminally convicted of this specific crime of sexual assault, he may still be able to get rights to your child.
1 A.R.S. § 25-416
How the legal decision-making and parenting time process works
How will a judge make a decision about legal decision-making and parenting time?
When deciding who will have legal decision-making and how much parenting time will be awarded, a judge will try to make an arrangement that s/he thinks is in the "best interest of the child." Generally, the judge will try to make sure that both parents share the rights and responsibilities of parenting. This means that the judge tries to let both parents play an active role in taking care of the child and making decisions about the child's life.
When making his/her decision, the judge is supposed to consider all factors that are relevant to the child's physical and emotional well-being, including the following:
- the past, present and potential future relationship between the parent and the child;
- the interaction/relationship between the child and his/her parent(s), siblings and any other person who may significantly affect the child's best interest;
- the child's adjustment to home, school and community;
- the wishes of the child regarding legal decision-making and parenting time, if s/he is old enough to make an intelligent decision;
- the mental and physical health of all people involved;
- which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent (however this does not apply if the judge believes 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);
- if one parent intentionally tried to mislead the court to win legal decision-making or parenting time powers, to cause a delay or to increase the cost of litigation;
- if there has been domestic violence or child abuse;
- the nature and extent of coercion or duress used by a parent in getting the other parent to make an agreement regarding legal decision-making or parenting time;
- if a parent has participated in a parenting education course (if required by the court) - Note: see What Is The Parents' Education Program? for detailed information; and
- if either parent was convicted of an act of false reporting of child abuse or neglect.1
1 A.R.S. § 25-403
What is the Parents' Education Program?
This program is designed to offer education to parents about the impact that divorce, the reorganization of families, and court involvement have on children. Parents who have a child (under 18) in common must attend the program when involved in a court case for divorce, legal separation, paternity, custody, parenting time, or child support.1 Parents may be required to pay a fee of $50 or less to attend the program, the fee may be deferred or waived.2 Parents who fail to attend the program may be held in contempt of court, denied specific court requests, or other penalties.3 If you are uncomfortable attending the program with your child’s other parent, you should let the court know. The court may be able to schedule different classes. The class takes a few hours and there are several locations and times, to accommodate busy schedules.4 For a list of locations and times contact a clerk of court in your county.
If you are a victim of domestic violence, let the judge know. The judge may order that the program be conducted in a way to protect the victim.5 For example, the judge could require your abuser to attend the class at a different location or time.4
1 A.R.S. § 25-351
2 A.R.S. § 25-355
3 A.R.S. § 25-353
4 Arizona Supreme Court, Things You Should Know About Parent Education Class (2006)
5 A.R.S. § 25-352(C)
If I move out of the home and leave my children there with the abuser, can this affect my chances of gaining legal decision-making powers?
Perhaps. Depending on how long you wait to file for legal decision-making after moving out, it may be possible that a judge may consider the fact that the other parent has been solely taking care of the children in your absence as a factor when making a decision. Before you leave an abusive relationship, you may want to get help to make a plan that will allow you to safely and legally take the children with you when you leave. If you want help doing this, you may want to talk to a lawyer who has experience with domestic violence and custody issues and/or a domestic violence advocate in your area. See our AZ Places that Help page.
However, you may also be able to convince the judge to consider your reason for leaving the home. If you left your home to escape domestic violence, a judge has to consider the effect that domestic violence has upon the best interests of the child when making a determination about legal decision-making.1 (However, if you argue that the other parent is abusive and should not be around the children, a judge may question why you’d leave your children with him/her.) It is possible that if the abuser got a temporary custody order based on your absence from the home, a judge may shift custody to the non-abusive parent eventually at trial. Bear in mind, however, that court cases sometimes drag on, during which time you might not have your children living with you. It is generally best to have a lawyer representing you in any custody case, especially one where you may be trying to fight for your children to be switched from the abuser's temporary custody to yours. Go to our AZ Finding a Lawyer for legal referrals.
1 A.R.S. § 25-403.03
Can I get temporary legal decision-making and parenting time when I file for an order of protection against the other parent?
No. Arizona's orders of protection are issued to petitioners seeking protection from harm or threat of harm (explained in more detail here). Arizona's orders of protection do not address legal decision-making or parenting time issues.1
A parent or legal guardian seeking an order of protection can include the minor children, naming them as protected parties in the petition. The judge will consider the facts of the case and decide whether to include the children in the order of protection or not. The most important factor is whether the children are in danger from the abuser.
1 Arizona Supreme Court, Plaintiff’s Guide Sheet for Protective Orders (2006)
Where do I file for legal decision-making?
Generally, you can file for legal decision-making in the "home state" of the child. (There are exceptions to the "home state" rule, which are explained in the next question). The "home state" is generally the state where your child has lived with a parent or a person acting as a parent for at least the past six months. If your child is less than six months old, then your child's home state is the state where s/he has lived since birth. Leaving the state for a short period of time does not change your child's home state.1
If you and your child recently moved to a new state, generally you cannot file for legal decision-making in that new state until you have lived there for at least six months. Until then, you or the other parent can start an action for legal decision-making in the state you just left (where your child most recently lived for at least six months).1 Here are a few examples:
- My children lived in Washington their whole lives. We just moved to Arizona less than 6 months ago. If I want to file for legal decision-making right now, I will probably need to file in Washington. The other parent may also be able to file for legal decision-making in Washington.
- My children lived in Washington their whole lives. We moved to Arizona more than 6 months ago. I can likely file for legal decision-making in Arizona.
- My children lived in Arizona their whole lives. They moved to Washington with their father less than 6 months ago. I can likely file for legal decision-making in Arizona.
1 A.R.S. § 25-1002(7)
Are there exceptions to the "home state rule?"
Yes. In general, there are four exceptions to the "home state" rule, explained below. However, we strongly suggest that you get advice from a lawyer regarding your particular situation since this can be very complicated:
- "Significant connection" - This occurs when your child has no "home state" (for example if the child has moved every few months) but does have a sufficient connection to one state. Your child does not need to be physically present in a state for a "significant connection" to exist.
- "More appropriate forum" - This is when both the home state and significant connection state(s) refuse to hear the legal decision-making case because the court feels there is a more appropriate state where the case should be heard.
- "Vacuum" - If there is no home state court, significant connection, or a more appropriate forum, another state court may step in and hear your case. This may apply to cases in which children do not stay in any one state long enough to form attachments.1
- "Temporary Emergency Custody"2- For an explanation on this exception, see Can I get temporary emergency custody?
If you have questions about whether your situation falls into one of these exceptions, please talk to a lawyer. For a list of legal resources, go to our AZ Finding a Lawyer page.
1 A.R.S. § 25-1031(A)(2)-(4)
2 A.R.S. § 25-1034
Can I get temporary emergency custody?
You may be able to file for temporary emergency custody (legal decision-making) in a state other than the "home state" if your child is present in the state AND:
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because either the child, a sibling, or a parent of the child (including you) is subjected to or threatened with mistreatment or abuse.1
If you are a domestic violence victim and you have to flee to another state to protect your or your children’s safety, you may want to file for temporary emergency custody in that state. However, if at all possible, you should talk to a lawyer about your situation before you leave to get advice on how to best present your situation in court and to get advice as to whether or not you may qualify.
Note: If the child’s home state is not Arizona, and you fled to Arizona where you were granted a temporary emergency custody order, the Arizona order may remain in effect until a final custody order is obtained from the home state. The temporary order from Arizona may be able to become a final custody order when six months have passed AND:
- no custody order is granted by the home state; or
- no custody action has been started by either parent in the home state.2
1 A.R.S. § 25-1034(A)
1 A.R.S. § 25-1034(B)-(C)
How do I file for legal decision-making?
You can file a petition for legal decision-making and parenting time (custody) either in the civil court or, if you are going through a divorce, in the superior court where the divorce case is being heard. Most often, legal decision-making and parenting time (custody) decisions are made by a judge when the parents are seeking a legal separation or divorce, or when the parent(s) are asking the court to change a legal decision-making and parenting time (custody) decision that was made in an earlier separation or divorce case. Legal decision-making and parenting time decisions may also be ordered when one parent files a paternity or maternity petition.1
1 A.R.S. § 25-402(B); see also Arizona Supreme Court, Planning for Parenting Time: Arizona’s Guide for Parents Living Apart (2009)
How much does it cost? Do I need a lawyer?
The cost can be affected by the court in which you file for legal decision-making and parenting time. You can file for legal decision-making and parenting time without a lawyer but it is highly recommended that you get a lawyer to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our AZ Finding a Lawyer page.
If you plan to file for legal decision-making and parenting time on your own, (called "pro se"), you may want to visit our AZ Download Court Forms page. Even if you plan on representing yourself, you should consider having a lawyer review your papers before you file them.
Can I get help with my attorney's fees?
Possibly. In a case for sole legal decision-making or joint legal decision-making, either parent may ask the court to order the other parent to pay his/her attorney fees, court costs and expert witness fees if s/he is unable to do so and the other parent has significantly more money than s/he does.1 Also, if the court feels that a parent is trying to modify (change) an order for the purpose of harassing the other parent, the judge can make the parent filing the petition pay the court fees and costs.2
1 A.R.S. § 25-403.08
2 A.R.S. § 25-411(M)
Can I get financial support for my children?
As part of the legal decision-making and parenting time hearing, the judge will usually determine how much money the other parent will pay to support your child. You may also get temporary child support as a part of a temporary order. A court's decision for joint legal decision-making does not lessen the responsibility of either parent to provide for the support of the child.1 The judge almost always uses guidelines that are set in a child support obligation worksheet to determine how much support you will receive. The judge may consider:
- gross income of parents;
- the number of children;
- extra education expenses; and
- medical/dental/vision insurance costs.
If you would like to see all of the factors that go into determining support, you can visit the AZ State Child Support website.
The guidelines the judge uses involve a very complex formula, but basically the judge looks at both parents' incomes, your child's needs and how much time your child spends with each parent.2 To get a basic idea of how much support you may receive, you can use the following online child support calculator. Remember this is a rough estimate and that only the judge can determine how much support you will actually receive.
1 A.R.S. § 25-403.09
2 A.R.S. § 25-320(D)
What happens after a legal decision-making and parenting time order is in place
How do I modify (change) a legal decision-making and parenting time order?
To change (modify) a final legal decision-making and parenting time order, you must fall into one of the following categories:
- one year has passed since the order was issued, in most cases;
- the judge allows the order to be modified if there is reason to believe that the child’s present environment may put the child’s physical, mental, moral or emotional health in serious danger;
- six months have passed since an order for joint legal decision-making was entered, and the other parent has not followed the order; or
- you can file to modify at any time if you have joint custody and there is evidence that domestic violence, spousal abuse or child abuse occurred since the order was entered.1
Please note that some special rules apply to military families. To read about the modification of legal decision-making orders that involve military families, read section A.R.S. § 25-411 on our AZ Statutes page.
To change a legal decision-making and parenting time order that is already in place, you generally need to file a motion with the court that issued the order, even if you moved. Generally, for the court to change your legal decision-making or parenting time order, you need to show that there has been a substantial change in circumstances since your last hearing and that the new arrangement would be in the best interest of your child.
You can find the forms you will need to fill out for a modification of legal decision-making at our AZ Download Court Forms page. You can find legal help with this process through our AZ Finding a Lawyer page.
1 A.R.S. § 25-411
What steps do I have to take if I want to try to relocate out of state?
If both parents are entitled to joint legal decision-making or parenting time (either by written agreement or by court order) and both parents reside in the state, either must give the other parent at least 45 days' notice in writing (sent certified mail, return receipt requested) if s/he wants to do either of the following:
- relocate the child outside to another state; or
- relocate the child more than 100 miles away from his/her current home (but still within the state of Arizona).1
The parent who receives this notice then has 30 days to file a petition in court to prevent the relocation of the child (although the time to file may be extended if the parent can prove there is "good cause" to do so).2
In certain circumstances, the parent may temporarily relocate with the child while the court is deciding the parent's petition to prevent the relocation - see subsection F of § 25-408 in our AZ Statutes page to read about these specific circumstances. If you are unsure about whether or not you can move while the court case is pending, please talk to a lawyer first. See our AZ Finding a Lawyer page for legal referrals. Note: If a child is relocated under this law, all parties must continue to follow the current court order, regardless of the distance moved or the notice required, unless otherwise ordered by the judge.3
1 A.R.S. § 25-408(A)
2 A.R.S. § 25-408(C)
3 A.R.S. § 25-408(E)
What factors will a judge consider when deciding whether or not to allow me to relocate with my child?
When deciding whether or not to allow a child to relocate to another state (or to relocate more than 100 miles within the state), the judge will consider the following:
- the factors listed in How will a judge make a decision about legal decision-making and parenting time?;
- if the relocation is being made (or opposed) in good faith and not for the purpose of trying to interfere with or frustrate the relationship or right of access between the child and the other parent;
- if the move will improve the general quality of life for the custodial parent or for the child;
- the likelihood that the relocating parent will follow parenting time orders;
- if the relocation will allow a realistic opportunity for each parent to have parenting time;
- how much moving (or not moving) will affect the emotional, physical or developmental needs of the child;
- the motives of the parents and the validity of the reasons given for moving (or opposing the move) including whether either parent may gain a financial advantage regarding continuing child support obligations; and
- the potential effect of relocation on the child's stability.1
1 A.R.S. § 25-408(I)
Can a parent who does not have legal decision-making responsibilities have access to the child's records?
Usually, yes. Whether or not a noncustodial parent has access to the child's school records, medical records, prescription medication records, court records and police records may depend on what your legal decision-making and parenting time agreement says. If your legal decision-making and parenting time order is silent about this fact, both parents would have access to these types of records regarding the child. In fact, if you do not comply with a reasonable request for these records, you can be ordered to reimburse the requesting parent for court costs and attorney fees that the parent spends to force you to comply with this law and you can be punished by the court as well. compliance with this section.1
The judge could limit the parent's right to these records if s/he determines that access by the noncustodial parent would place the child’s or custodial parent’s physical, mental, moral or emotional health in serious danger.2 If you would like to limit the other parent's access to your child's records, be sure to tell this to the judge. If the judge refuses to deny access, and you are living in a confidential address, you might want to take steps to try to keep your address confidential such as asking your child’s doctors, schools, etc. if you can give a P.O. box instead of your actual address.
1 A.R.S. § 25-403.06(A),(B),(D)
2 A.R.S. § 25-408(K)