Divorce & Annulment Article


Best Interests of the Child

Whenever a court here in Arizona is asked to decide which (if any) of a minor child’s parents should have custody over the child, the court is required to make its decision in accordance with the child’s “best interests.” Whenever Arizona parents go to court in a family law context, the “best interests of the child” is the legal standard that judges must follow in determining which parent(s) should make major decisions for the child and with which parent(s) the child should live.

This article discusses “the best interests of the child” as well as the context in which this important legal standard is most commonly used by courts in Arizona: in making determinations about legal decision-making and parenting time.

How is child custody defined in Arizona?

What Arizona courts traditionally called (and other states’ courts sometimes still call) “legal custody” and “physical custody” are now known as “legal decision-making” and “parenting time.”

What is “legal decision-making”?

Legal decision-making means the legal right and responsibility to make all non-emergency legal decisions for a minor child – including decisions regarding education, health care, religious training, and personal care.

Joint legal decision-making means both parents share decision-making and neither parent’s rights or responsibilities are superior to the other’s (unless the final judgment or order identified certain decisions as belonging to one parent only).

Sole legal decision-making means one parent has the legal right and responsibility to make all major decisions for a child.

What is “parenting time”?

Parenting time means the specified times during which each parent has access to a minor child. Parenting time is sometimes called “visitation.”

During each parent’s scheduled parenting time, that parent is responsible for providing the child with food, clothing, and shelter, and may make routine decisions concerning the child’s care.

Whether a parent has joint or sole legal decision-making does not automatically mean that the parent will have a particular level of parenting time. For example, two parents may have joint legal decision-making but very different levels of parenting time.

What is a “parenting plan”?

When the parents of a minor child cannot agree on a plan for legal decision-making and/or parenting time, each parent is required to submit a proposed parenting plan to the court. It will be up to court to determine any element(s) of the parenting plan about which the parents cannot agree.

The proposed parenting plan must address (at a minimum) each of the following:

1. A designation of the legal decision-making as either joint or sole.

2. Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care, and religious training.

3. A practical schedule of parenting time for the child, including holidays and school vacations.,,?p>

4. A procedure for the exchanges of the child, including location and responsibility for transportation.

5. A procedure by which proposed changes, relocation of where a child resides with either parent, disputes, and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.

6. A procedure for periodic review of the plan’s terms by the parents.

7. A procedure for communicating with each other about the child, including methods and frequency.

8. A statement that each party has read, understands and will abide by the notification requirements which take effect when a parent or custodian knows that a convicted or registered sex offender or a person who has been convicted of a dangerous crime against children may have access to the child.

How do Arizona courts determine which parent(s) should have legal decision-making and parenting time?

When the parents of a minor child cannot agree on a plan for legal decision-making and/or parenting time, the court will examine their proposed parenting plans and consider the arguments and evidence presented by both parties in order to determine what kind of legal decision-making and parenting time it will order.

Under Arizona law – at Arizona Revised Statutes (A.R.S.) § 25-403(A) – Arizona courts are required to award legal decision-making and parenting time “in accordance with the best interests of the child.”

Does Arizona law tend to favor one parent over the other?

No. Because what is in one child’s “best interests” might not be in another child’s “best interests,” it is never presumed that what works in one case will work in another. Instead, each unique child’s (or set of siblings’) “best interests” are considered within their own context. Arizona law does not presume that a child should be with the mother instead of the father (or vice versa). In fact, there is a rebuttable presumption in Arizona law that it is in the best interests of every child to have a relationship with both of their parents. A.R.S. § 25-403.02 requires that courts adopt parenting plans that provide for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time whenever possible. It also expressly states that courts may not prefer one parent’s proposed parenting plan over another’s because of the parent’s or child’s gender.

How do courts determine a child’s “best interests”?

In order to ensure that a particular legal decision-making and parenting time arrangement is consistent with a child’s best interests, A.R.S. § 25-403(A) requires that judges consider “all factors that are relevant to the child’s physical and emotional well-being.”

These factors include (but are not limited to) each of the following:

1. The past, present, and potential future relationship between the parent and the child.

2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

3. The child’s adjustment to home, school and community.

4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.

This factor does not apply if the court determines 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.

7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation, or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8. Whether there has been domestic violence or child abuse.

If the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interests. (The burden of showing otherwise falls on the parent who committed an act of domestic violence.) This presumption does not apply if both parents have committed an act of domestic violence.

A person commits an act of domestic violence if that person does any of the following:

1. Intentionally, knowingly or recklessly causes or attempts to cause sexual assault or serious physical injury.

2. Places a person in reasonable apprehension of imminent serious physical injury to any person.

3. Engages in a pattern of behavior for which a court may issue an ex parte order (with the parent who committed the act of domestic violence not present) to protect the other parent who is seeking child custody or to protect the child and the child’s siblings.

9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

10. Whether a parent has completed the required parent education class.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect. When the parents of a minor child cannot agree on a plan for legal decision-making and/or parenting time, the court is required to make specific findings on the record about each of these factors – assuming they are relevant to the particular case – as well as the reasons why the judge’s decision is consistent with the child’s best interests. Any parent who proposes a parenting plan with the hope of being granted a particular legal decision-making and parenting time arrangement should remember that the legal standard that the court will use when it determines which parent(s) should make major decisions for the child and with which parent(s) the child should live is “the best interests of the child.”

Sources and further reading

Arizona Department of Economic Security – “Parenting Time and Legal Decision Making”: https://des.az.gov/services/child-and-family/child-support/arizona-child-support-parenting-time-and-legal-decision

Arizona Revised Statutes (A.R.S.) Title 25 – “Marital and Domestic Relations”: https://www.azleg.gov/arsDetail/?title=25

Arizona Revised Statutes (A.R.S.) § 25-403 – “Best Interests of the Child”: https://www.azleg.gov/ars/25/00403.htm

Arizona Supreme Court – “Planning for Parenting Time: Arizona’s Guide for Parents Living Apart”: https://www.azcourts.gov/portals/31/parentingTime/PPWguidelines.pdf

Arizona Supreme Court – “Things You Should Know About Legal Decision-Making and Parenting Time”: https://www.azcourts.gov/Portals/34/AOCDRCV1H.pdf


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  • A wife cheats and get pregnant by another man. The husband and wife are currently going through a divorce. If the child is born before the divorce is finalized is the husband responsible for the child even though it's not his?
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