Overview
Arizona uses the term “parenting time” to refer to what other jurisdictions may call physical custody. It is the component of child custody that defines the time each parent spends with their children.
Parenting time is established by court order. Even when the parties agree to informally create a parenting schedule, the agreement should be formalized and submitted to the family court so that it can be adopted as an enforceable court order.
Unfortunately, this means that without a court order, neither parent is entitled to parenting time. This often leads to one parent withholding or keeping the children from the other parent. This scenario disproportionately affects unmarried fathers because, pursuant to A.R.S. § 13-1302(B), “the mother is the legal custodian … until paternity is established and custody is determined by a court.” So before the family court can establish child custody rights, legal paternity must be established.
Establishing Paternity
Effect of Birth Certificate
People commonly ask if listing someone as the father on a birth certificate establishes paternity. The short answer is an Arizona birth certificate does not directly establish paternity. However, A.R.S. § 36-334 requires unmarried fathers to sign an Acknowledgment of Paternity to be listed as the father on a birth certificate.
Acknowledgment of Paternity
A voluntary Acknowledgment of Paternity is signed by both parents under oath and given the same effect as a court order establishing legal paternity. We add “legal” to paternity here because a person can be a legal parent without a biological relationship to the child. Anyone who voluntarily acknowledges paternity will be considered the legal parent unless the acknowledgement was rescinded by the mother or father within sixty days from the date of the last signature or the acknowledgment was otherwise defective.
An acknowledgment of paternity could be defective if it was induced by fraud, duress, or material mistake of fact. It is very important to note that these grounds to set aside an acknowledgment of paternity are very technical and far more limited than they may seem. For example, it is generally not considered a material mistake of fact to say that you mistakenly believed the child was yours and later found out that this was untrue.
The acknowledgment also could be defective if a presumption of paternity applies and the acknowledgment was signed without the written consent of the presumed father.
Petition to Establish Paternity
If paternity has not been established with a voluntary acknowledgment, either parent can seek a court order to establish legal paternity. This may even be the best course of action when you are unsure, as it can enable you to request a court-ordered genetic (DNA) test to determine paternity.
Presumption of Paternity
Under A.R.S. § 25-814, an individual is presumed to be the father (or, more appropriately, the parent as we'll explain below) of a child if (1) he and the mother were married at any time in the ten months before the child was born; (2) genetic testing indicates at least a 95% probability of paternity; (3) the birth certificate is signed by the mother and father of a child born out of wedlock; or (4) a notarized statement is signed by both parents acknowledging paternity.
So if an individual is the presumed father/parent for any of those reasons, the mother and another individual cannot voluntarily acknowledge paternity, at least not until the presumption was rebutted. This can happen with a petition to establish paternity where the family court can determine who the legal parents are.
Same Sex Couples
The naming conventions for these statutes are dated and probably should be changed from “paternity” to “parentage.” This is because the Arizona Supreme Court has held that these statutes, including the presumption of paternity, apply to same sex couples as well.
Establishing Parenting Time
Petition to Establish Parenting Time
The process to establish parenting time begins with one or both parents filing a Petition to Establish Parenting Time. If paternity is not yet established, it can be done at the same time. The same goes for legal decision-making and child support. If the parties agree to everything, they can submit a parenting plan jointly. Otherwise, either parent can file a Petition to Establish. If a parent needs immediate parenting time orders, they can file a motion for temporary orders with their petition or any time after it is filed.
Once the petition is filed, it is served on the other parent. Service in this context means delivered to the other parent by a process server or other means consistent with the Arizona Rules of Family Law Procedure.
After process service is complete, the other party will have 20 or 30 days to file a response. Like the petition, the previous links should have court forms for these as well.
How Courts Decide Parenting Time
If the parents cannot agree to a parenting schedule, the family court judge will decide each parent’s parenting time. This will happen after an evidentiary hearing (a trial) where each parent will have the opportunity to present evidence and testimony to support their preferred parenting time schedule. Under Arizona law, family court judges have very broad discretion when it comes to determining parenting time but there are a few factors that they have to consider.
Best Interests Factors
In every case involving legal decision-making or parenting time (including establishments and modifications), family courts must consider the factors set forth under A.R.S. § 25-403.
Often are referred to as the Best Interests Factors, this statute requires family courts to consider:
- The past, present and potential future relationship between the parent and the child.
- 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.
- The child's adjustment to home, school and community.
- If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph 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.
- 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.
- Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
While some of these factors may seem pretty intuitive, they are not particularly well defined and that can lead to very different results depending on the assigned judge and the presentation of your evidence and testimony. The Best Interests Factors are important enough to warrant their own article. Once we publish it, we will link it here.
Child Interviews
One of the most common questions we get from parents is some variation of “when can my child decide parenting time?” The best answer to this question is children never get to decide, at least not yet. There have been proposed changes to the law that would allow children of a certain age to essentially choose the parenting time schedule. This is something you may want to keep an eye on if it is relevant to your family.
Additionally, a recent opinion from the Arizona Court of Appeals added some nuance to this when it affirmed the family court’s decision to leave parenting time with one parent to the child’s discretion. You are encouraged to read that opinion but with a prefatory understanding that the family court still considered all of the other factors, too.
Children who are deemed to be “suitable age and maturity” can be interviewed by family court personnel. Absent agreement between the parties, these interviews are not confidential so we encourage parents to carefully consider whether an interview may provoke the other parent before requesting a child interview.
Role of Court Appointees
There are other resources available to aid family courts in their quest to determine parenting time consistent with the children’s best interests, including various professionals who can be appointed to help.
The most common appointments, especially in cases where child abuse or neglect is alleged, are best interest attorneys (“BIA”) and court-appointed advisors (“CAA”). These appointees function similarly, though there are a couple of important differences. The first is that best interests attorneys are not witnesses. By rule, they are not allowed to testify or submit their own opinions as evidence. They participate in the case just like attorneys for the parents except they advocate for the best interests of the child. Court-appointed advisors may interview the parties, children, and other witnesses and prepare a report containing their recommendations for legal decision-making and/or parenting time.
Far less commonly, the family court actually can appoint an attorney to represent the child. The family court also can order the parties to submit to various types of professional services such as counseling, therapy, or even psychological evaluations.
The purpose of these appointments is usually to help the family court better understand the facts that affect the children’s best interests and gather additional evidence related to any claims of parental unfitness asserted by the parents.
Common Parenting Time Schedules
Presumption of Parenting Time
If you have researched parenting time or have consulted with other family law attorneys, you may have heard that there is a presumption of equal parenting time or that “Arizona is a 50/50 state.” The latter shows up a lot in marketing materials for law firms that market themselves as “Father’s Rights” firms. It is true that there was a published opinion from the Court of Appeals that stated “equal parenting time is presumed to be in a child’s best interests.” This, however, has been walked back in several subsequent decisions where the same appellate court has denied that this presumption exists.
While this is being worked out in competing appeals, it is safe to frame your understanding as follows: equal parenting time is the starting point for Arizona family courts.
This may sound very similar to the presumption mentioned a couple of paragraphs ago, but it functions differently because calling it a “starting point” does not impose any heightened burden of proof on the party who wants more than equal parenting time. Basically what this means is that either parent can request an unequal parenting schedule if they believe that equal parenting time would be contrary to their children’s best interests.
Primary Residential Parent
If one parent exercises more parenting time than the other parent, they may be designated as the “primary residential parent.” All this means is that they exercise more parenting time than the other parent. It does not confer any other legal rights. There is another term, called primary caretaker, that exists under A.R.S. § 25-403.07 solely to qualify a parent for public assistance. If neither parent in your case receives or seeks public assistance, there will be no primary caretaker regardless of how parenting time is allocated.
Examples of Equal Parenting Time Schedules
Equal parenting time can take many forms. Maybe the most common equal parenting schedule used by Arizona family court judges is called a 5-2-2-5 (phonetically, “five two two five”) schedule. This type of schedule gives each parent two preset days of parenting time every week and then the parents alternate the other three-day period (usually the weekend).
For more visual readers, a standard 5-2-2-5 schedule looks like this:
Week One
Parent A: Monday, Tuesday
Parent B: Wednesday, Thursday
Parent A: Friday, Saturday, Sunday
Week Two
Parent A: Monday, Tuesday
Parent B: Wednesday, Thursday
Parent B: Friday, Saturday, Sunday
Under this type of parenting schedule, any two specific days can be assigned to each parent. But the point is that those days are always assigned to that parent. It is called a 5-2-2-5 because the first two numbers represent the number of parenting time days assigned to each parent during the first week and the second two numbers represent the number of parenting time days assigned to each parent the second week. Then the rotation starts over.
For parents who do not want to be away from their children for five consecutive days, there is a very similar variation of this schedule called a 2-2-3 ("two two three") that could look like this:
Week One
Parent A: Monday, Tuesday
Parent B: Wednesday, Thursday
Parent A: Friday, Saturday, Sunday
Week Two
Parent B: Monday, Tuesday
Parent A: Wednesday, Thursday
Parent B: Friday, Saturday, Sunday
Both of these schedules require somewhat frequent parenting time exchanges and this can be a source of conflict between parents who are not able to coordinate their schedules well. So another common variation of an equal parenting schedule may have the children reside with each parent during alternate weeks. This can be referred to as a “week on/week off” schedule and its best use case might be for older children such as teenagers or in cases where the parties have trouble coordinating their schedules for the more frequent exchanges.
For parents whose schedules or other logistical factors limit their ability to exercise parenting time during school weeks, it may be possible to achieve equal time or substantially equal time by exercising parenting time three out of every four weekends and expanding their parenting time during summers and other extended breaks when the children are not in school.
The takeaway here should be that the family court—or the parents, if they can agree—really can create any number of unique schedules that maximize each parent’s parenting time.
Reasons for Unequal Parenting Time
Domestic Violence or Child Abuse
Whenever a parent commits acts of domestic violence against the other parent or the child, there will be a presumption against joint legal decision-making and equal parenting time. This does not mean that the family cannot order equal parenting time, but it may convince the judge that equal parenting time is contrary to the child’s best interests. It should be noted that both domestic violence and child abuse in this context include more than physical abuse. Emotional abuse, harassment, or a variety of other types of actions can constitute domestic violence or child abuse.
Substance Abuse
Like domestic violence or child abuse, a parent’s substance abuse invokes a separate presumption against joint legal decision-making and equal parenting time. Family courts can order a parent to submit to drug testing, real time monitoring, or a more intensive substance abuse evaluation if it is concerned about a history of substance abuse. Also like domestic violence or child abuse, a history of substance abuse is not automatically disqualifying. Those parents can still be awarded equal parenting time. It just depends on the specific circumstances in each case.
Estrangement
It may be inappropriate to award equal parenting time to parents who have been absent for extended periods of their children’s lives. In this type of situation, the family court might order therapeutic intervention/reunification. This is a type of therapeutic process intended to reunite estranged parents with their children under the supervision of a mental health professional who can supervise and ensure that the process is safe for the children.
Logistics
As mentioned before, family courts are not obligated to award equal parenting time even when both parents are good, fit parents. If equal parenting time is logistically difficult in a way that negatively affects the children, it might require one parent’s parenting time to be reduced. One somewhat common example of this might be a situation where the distance from one parent’s home to the children’s school is so great that it makes transporting the child to school difficult for that parent. Another example could be the parent’s work schedule. Medical professionals and first responders often work unusual schedules that can make conventional equal parenting schedules logistically difficult.
Child's Age, Special Needs, or Preferences
Equal parenting time may not always be ideal for infants or children with special needs. This also may be true for older children who prefer an unequal parenting time schedule. As discussed before, the child’s preferences usually are not determinative, but they can be given considerable weight especially if the other best interests factors are mostly neutral.
Supervised Parenting Time
Restricting one parent’s parenting time may not be sufficient to ensure the safety of the children. It may be appropriate for that parent’s parenting time to be supervised. Parenting time can be supervised at a facility that provides supervision services or by a court-approved supervisor. Sometimes this might be another service like community supervision where a professional supervisor can meet the parents and supervise parenting time at a public location like a park or an arcade. In other cases, the family court might approve a member of the supervised parent’s family to be the supervisor. It may even be the non-supervised parent who acts as a supervisor, though this is obviously inappropriate in cases involving domestic violence or high conflict between the parents.
Parenting Plan Requirements
You may be wondering what a parenting plan looks like. That depends on whether you, a family law attorney, or your judge prepares your parenting plan.
No matter who prepares the parenting plan, there are a few minimum requirements. Pursuant to A.R.S. § 25-403.02, every parenting plan must include:
- A designation of the legal decision-making as joint or sole as defined in section 25-401.
- 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.
- A practical schedule of parenting time for the child, including holidays and school vacations.
- A procedure for the exchanges of the child, including location and responsibility for transportation.
- A procedure by which proposed changes, relocation of where a child resides with either parent pursuant to section 25-408, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.
- A procedure for periodic review of the plan's terms by the parents.
- A procedure for communicating with each other about the child, including methods and frequency.
- A statement that each party has read, understands and will abide by the notification requirements of section 25-403.05, subsection B.
Other provisions that you may want to consider adding to a parenting plan include any special procedures for domestic and/or international travel with the child, preferred terms concerning children’s participation in extracurricular activities and how those costs should be divided, whether there will be a right of first refusal and how it is to be exercised, and your preferred terms concerning telephone/videoconference access each parent should have with the children during the other parent’s parenting time. By default there is no right to call or FaceTime with your children during the other parent’s parenting time.
Be specific and clear whenever possible. An entire subset of our litigation practice is devoted to enforcement of parenting plans. Poorly written parenting plans may be ambiguous, unclear, inconsistent, and open to competing interpretations. This can be a needless source of conflict later that often can be avoided with a carefully drafted parenting plan.
Modifying Parenting Time
Just like the establishment of parenting time, it is possible for parents to informally agree to modification. However, the agreement does not become enforceable until it is adopted as a court order. Even if you trust your coparent and believe they never would rescind or go back on your informal agreement, it is always good practice to formalize any modification of parenting time and submit an updated parenting plan to the family court. This usually doesn’t require an attorney, though it is always a good idea to have an attorney review your legal documents to confirm your understanding and evaluate any potential issues before filing.
Substantial and Continuing Circumstances
Assuming you and your coparent do not have a full agreement, you can modify parenting time when there have been substantial and continuing changes that affect the best interests of the children. That basically just means that something important has changed since the last parenting time orders were entered that warrant modification. This could be almost anything you can think of so long as it is a big change that affects the children.
One Year Since Previous Orders
Another technical requirement for modification of parenting time is that at least one year has passed since your previous parenting time orders were entered. This waiting period does not apply whenever there is reason to believe the child is “seriously” endangered. In those situations, parents can always seek modification.
Relocation
Relocation is a term Arizona uses whenever a parent wishes to move more than 100 miles from where they lived when the previous parenting time orders were entered. Unless your previous court orders specifically allow you to relocate, you will need the other parent’s consent or a court order before you can relocate the children. Additional notice requirements and the specific procedure for relocation can be found in A.R.S. § 25-408.
That statute also provides seven additional factors (plus the best interests factors from A.R.S. § 25-403 that we discussed above) the family court must consider in relocation cases. The relocation factors are:
- The factors prescribed under section 25-403
- Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child
- The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child
- The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders
- Whether the relocation will allow a realistic opportunity for parenting time with each parent
- The extent to which 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 the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations
- The potential effect of relocation on the child's stability.
The parent who wants to relocate has the burden to prove that the relocation is in the children’s best interests.
When one parent relocates and the parents cannot agree to a new parenting schedule, the family court will implement a schedule that makes sense for the distance between the parents’ homes. Relocations that barely exceed 100 miles may require minimal adjustments. A common example might be one parent moves from Phoenix to Tucson. The relative proximity allows family courts to order substantially equal parenting time. Other relocations can be much greater distance and they may require a long distance parenting schedule. The typical long distance parenting schedule designates one parent—it may be the parent who relocates or the parent who doesn’t relocate—as the primary residential parent. Again, this just means the child lives mostly with that parent. The other parent then exercises parenting time as much as realistically possible during school breaks.
The costs incurred related to the long distance parent’s parenting time can be allocated however the family court judge feels is appropriate. This sometimes means that the primary residential parent contributes some or even the majority of those costs. This can seem really unfair if the other parent’s relocation was voluntary. The allocation just depends on the unique circumstances of each case.
Enforcing Parenting Time
Custodial Interference
Technically speaking, withholding a child from the other parent can be a crime. This is called custodial interference and, under A.R.S. § 13-1302, it is defined to mean:
A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:
- Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.
- Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.
- If the person is one of two persons who have joint legal custody of a child, takes, entices or withholds from physical custody the child from the other custodian.
- At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.
Unfortunately, law enforcement protocol is not always as helpful as maybe it could be. Local law enforcement officials often refer parents involved in potential custodial interference to family court. Absent exigent circumstances (i.e. an emergency), law enforcement may be reluctant to help parties enforce parenting time or child custody orders. This can be really discouraging to parents, especially those whose children are being kept from them unlawfully, but the reason is because that it is really difficult for law enforcement professionals to ascertain the exact legal rights of each parent. Because parenting time orders can be modified, sometimes there can be multiple court orders that contain valid provisions. This is sloppy practice, but it happens frequently.
Petition to Enforce Parenting Time
When one parent violates a parenting plan, the other parent usually has a right to enforce the parenting plan. This can be done by filing a Petition to Enforce. As it pertains to parenting time, a Petition to Enforce Parenting Time may be appropriate when one parent withholds the child from the other parent during their court-ordered parenting time. It may also be appropriate to enforce any other provision of the parenting plan.
Family courts have authority to impose sanctions against the party who violated the court orders.
Make Up Parenting Time
The most common sanction is probably make up parenting time. Family courts can compensate parents whose parenting time was withheld by ordering that time to be made up in the future.
Other Sanctions
Other sanctions can include contempt of court, ordering the violating parent to pay the non-violating parent’s attorney’s fees and costs; to complete parent education courses; or even to participate in family counseling at their cost.
For recurring violations, the family court can impose a fine of up to $100 for each violation. This money goes to a state fund that is used to help pay for alternative dispute resolution programs throughout the state.
Interstate Child Custody Cases
Interstate child custody cases are cases where the parents reside in different states or countries. If you and your coparent reside in different states, the first step before establishing parenting time would be to determine where to initiate your case.
UCCJEA
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a legal framework adopted by Arizona and 48 other states along with most U.S. territories that helps determine which state has jurisdiction—the authority to hear the case—in child custody cases. Massachusetts is currently the only state that has not adopted the UCCJEA.
Interstate Jurisdiction to Establish Parenting Time
Under the UCCJEA, a state has jurisdiction to establish child custody orders if it is the “home state” of the child on the date the petition is filed or within six months prior to the filing if one parent still resides there. This can be confusing because it provides two different scenarios where a state has initial jurisdiction and both depend on the definition of “home state.”
Home state means the state where the child lived for at least six months prior to the child custody proceeding. If the child is less than six months old, the home state is usually where the child lived the majority of the time since birth.
The concept of interstate jurisdiction regularly confuses our professional colleagues so we’ve provided the following fact pattern to help better illustrate how interstate jurisdiction is determined.
John and Jane reside in Arizona. They have a child and the child lives in Arizona for the first year of her life. After that, John and Jane end their relationship and Jane relocates to Colorado. While John remains in Arizona, Jane takes the child with her and they have lived in Colorado for five months when Jane files a Petition for Parental Responsibilities in Colorado. After finding out that Jane filed in Colorado, John files a Petition to Establish Parenting Time in Arizona.
Even though Jane filed first in Colorado, Arizona was still the child’s home state under the UCCJEA. This is because Arizona became the home state when the child and the parents lived there for more than six months. After Jane and the child moved, Arizona remained the child’s home state because John continued to reside in Arizona. If this case follows the law, the Arizona family court judge will probably have a conference call with the Colorado family court judge and they will agree that the Colorado petition should be dismissed and that the case should proceed in Arizona.
Interstate Jurisdiction to Modify Parenting Time
Once a state enters child custody orders, its family court retains what is called exclusive continuing jurisdiction in the case until the family court: (1) relinquishes jurisdiction or (2) determines that neither the child nor the child’s parents (or anyone acting as a parent) reside in the state. We’ve modified our previous fact pattern to illustrate this scenario.
After Jane’s Colorado petition was dismissed, the Arizona family court entered orders establishing legal decision-making, parenting time, and child support. John was the primary residential parent and Jane exercised long-distance parenting time during summers and school breaks. Two years later, John accepted a job in Albuquerque, New Mexico and relocated there. Jane wished to modify their previous parenting plan to allow the child to live primarily in Colorado but was unsure where to file.
Now Jane would be able to file a Petition to Modify in Colorado. This is because neither the child nor the parents reside in Arizona. John’s relocation to another state essentially “reset” the jurisdictional determination. The process to modify a child custody order entered by another state varies by state. In Arizona, the out-of-state child custody order is formally registered in Arizona and that gives Arizona family court the authority to modify the foreign child custody orders.
Interstate Enforcement of Parenting Time
In cases of interstate parenting time withholding, sometimes called parental kidnapping, every state is obligated to enforce an out-of-state order to return the child under the Hague Convention.
For violations of the parenting plan that do not involve parental kidnapping, enforcement should occur in the family court with jurisdiction over the child custody orders.
Third party rights or visitation are not technically parenting time, but the concepts are parenting time-adjacent enough to be summarized here. Under A.R.S. § 25-409, third parties can petition the family court to establish what are called third party rights or third party visitation.
Third party rights are essentially child custody rights, including legal decision-making and physical placement of the child. A third party seeking to establish third party rights must prove (1) they have a parental relationship with the child; (2) it would be “significantly detrimental” to the child to remain in the care of either legal parent; (3) that the family court has not entered orders regarding legal decision-making or parenting time within one year prior to the third party rights petition unless there is reason to believe that the child’s present situation seriously endangers the child; and (4) one of the legal parents is deceased or the legal parents are not married at the time the third party rights petition is filed (or they are involved in a pending divorce or legal separation).
Third party visitation, on the other hand, does not give the third party any child custody rights. Instead, it allows a third party to request visitation with the child if: (1) one of the legal parents is deceased or missing for at least three months; (2) the child was born out of wedlock and the legal parents are not married to each other at the time the third party visitation petition is filed; (3) the third party petitioning the court is a grandparent or great-grandparent and the parents have been divorced or legally separated for at least three months; or (4) the third party petitioning the court has a parental relationship with the child and the legal parents are involved in a pending divorce or legal separation.
Conclusion
We hope this parenting time guide will be helpful. It is a lot of information and, as with almost any aspect of the law, the specific details of each case are really important. That is why we encourage you to contact us to schedule your free initial consultation with one of our child custody attorneys. The consultations are conducted by telephone so you can get answers to your specific questions without even leaving your house. There is no obligation, no hard sell; we just want you to have the best information possible so that you can do what is best for you and your children.
