Custody

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

• If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
• If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
• If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

​2. Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about legal decision-making and parenting time? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

3. Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

• communications between the parents can only be in writing;
• all communications can only be related to the child; and
• a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.

4. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

To find out more about how the process works in your area, please contact a lawyer. Please visit our AZ Finding a Lawyer page to find legal help in your area.​ You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

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 six 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 six 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 six months ago. I can likely file for legal decision-making in Arizona.

You can file a petition for legal decision-making and parenting time 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 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 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 petition.²

¹ A.R.S. § 25-1002(7)
² A.R.S. § 25-402(B)

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

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)

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 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)