You may have heard that the best interest of the minor child is used to determine parenting time for a minor child, but what does it mean to say that a court will make the decision based on the “best interest” of the child? In Arizona, the judge considers multiple factors in determining the best interest of the child, many of which are similar to factors considered in other states. The court will look at all of the following factors:
Relationship between the parent and child. The past, present and future relationship between the child and each parent is considered. This includes the nature of the bond between the parent and child and the feelings shared between the child and each parent. The court may also consider whether you or your spouse have been the primary caretaker of the minor child.
The interaction and interrelationship between the child and other persons. The interaction and interrelationship between the child and each parent as well as the child’s siblings and any other person who may significantly affect the child’s best interests.
The child’s adjustment to home, school and community. This refers to the respective environments offered by you and your spouse. The court may consider factors such as the safety, stability, and nurturing found in each home.
The wishes of the child as to legal decision-making and parenting time. If the child is of suitable age and maturity the child may be able to express their wishes as to legal decision-making and parenting time. This can be expressed either through the respective parents, or sometimes by the child providing information to a court appointed advisor, or the court. However, this is only one factor, and is not determinative. Arizona does allow a child to choose the parent he or she wishes to live with. Typically, the older the child is the greater the weight the court will give to the child’s preference.
The mental and physical health of all individuals involved. Arizona no longer ascribes to the “tender years” doctrine, which formerly gave a preference for custody of very young children to the mother. If one of the parents has an illness that may impair the ability to parent, it may be considered by the court. Similarly, the judge may look at special health needs of a child.
Which parent is more likely to allow frequent, meaningful and continuing contact with the other parent. This factor might be applied in your case if there is evidence that your spouse will not comply with the court orders or if there is evidence that your spouse may attempt to align the child with them and alienate you from your child.
Whether one parent intentionally misled the court. This factor may apply if one parent intentionally misleads the court to cause unnecessary delay, increase the costs of litigation, or tries to persuade the court to grant them legal decision-making or parenting time. Things such as asking for custody evaluations when there is no evidence to warrant an evaluation, or raising allegations against the other parent that are false, are all things that may affect this factor.
Whether there has been domestic violence or child abuse. If there has been significant domestic violence, or a significant history of domestic violence, the court will not award joint legal decision-making. Domestic violence is also an important factor in determining parenting time and protection from abuse during the transfer of your child to the other parent. If domestic violence is a concern in your case, be sure to discuss it in detail with your attorney during the initial consultation so that every measure can be taken to protect the safety of you and your children.
The nature and extent of coercion or duress used by one parent in obtaining an agreement regarding legal decision-making or parenting time. The court may consider whether your spouse offered to pay you more money if you gave more parenting time, or whether you offered to accept less money in exchange for more parenting time. This type of economic coercion is not permitted in determining the best interest of the minor child.
Completion of the parenting information program. Each parent must complete an educational program that educates parents on the impact of divorce on adults and children. The superior court in your country will have a list of available programs. In some counties the program may be offered in person and on-line.
False reports of child abuse. Reporting a false case of child abuse against the other parent is a factor the court will consider in determining decision-making and parenting time.
The judge in making a final determination will have to make specific findings with respect to each factor. Accordingly, it is important to discuss each of the above factors in detail with your lawyer.
About the Authors:
Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.
Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.
Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.