Dustin T. Dudley, PLLC

OPTIONS FOR LEGAL DECISION-MAKING AUTHORITY AND PARENTING TIME IN DIVORCE CASES

I. Child Custody

The Arizona State Legislature has repeatedly modified the legal definition of “Custody” in an apparent effort to further disassociate important decision making from day-to-day parenting. Despite repeated modifications of the statutory language, the present family law statutes, as well as those that went into effect on January 1, 2013, make it clear that the decision-making function of parenting is to be treated separate and distinct from day-to-day parenting time in final orders related to legal decision-making authority and parenting time.

Modifications to Title 25 of the Arizona Revised Statutes that occurred on January 1, 2013, utilized the term “legal decision-making” in place of “legal custody.” For this explanation, what was previously referred to as “legal custody” is set forth under “custody” and what was previously referred to as “physical custody” is set forth under “parenting time.” This is the easiest way to explain the present concepts that should remain somewhat consistent with the January 1, 2013 amendments to Title 25.

1. Custody (“Decision Making”) Defined
Legal “Custody” has nothing to do with which parent the child or children live on which days. But rather, it is a designation relating to who makes important decisions on behalf of the child. The types of decisions legal “custody” empowers a parent (or both parents) to make are those such as: which religion, which doctors or medical practitioners, and which school or type of educational facility.

2. Custody (“Decision Making”) Options
a. Joint
Joint custody has historically referred to joint legal custody or joint physical custody or both. Using the term joint custody to relate to both the decision making and the parenting time has led to significant confusion, which may be the motivation behind the amendments to Title 25 taking effect January 1, 2013. So, for the purpose of this explanation, “custody” will refer to only decision making.
Joint legal custody means that both parents share in the decision-making authority over major issues regarding the child.
b. Sole
Sole legal custody vests the decision-making authority with respect to major decisions in one of the parents.

3. How Decided
In all divorce proceedings with children, the parties should attempt to reach agreements regarding custody and parenting time. When a court reviews a case dealing with child custody, the first issue it will consider is whether or not it has proper jurisdiction -- the right and the power to interpret and apply the law to the child. Once this is determined the court will consider any agreement between the parties. Child custody and parenting time agreements should take into consideration:
1. Who will take care of the child;
2. How necessary decisions will be made;
3. How the child will spend time with each of the parties; and
4. How the child's medical, emotional, education, physical and social needs will be met

The court than reviews this agreement and determines if it is consistent with the best interest of the child. When agreements cannot be reached a hearing is required to resolve these issues.

If the parties are unable to reach an agreement as to which legal “custody” arrangement is in the best interest of their minor child, the court will consider anything it believes is relevant in addition to the factors set out in A.R.S. § 25-403 , which include the following:

1. The wishes of the child's parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. 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.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful 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.
7. Whether one parent, both parents or neither parent has provided primary care of the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
9. Whether a parent has complied with chapter 3, article 5 of this title.
10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
11. Whether there has been domestic violence or child abuse as defined in section 25-403.03 .
After considering all of the factors set forth above as well as anything else the court finds relevant, the court will order the custody arrangement that it believes to be in the child’s best interest.

Additionally, both parents are required to take the parental education program course. This course is intended to educate parties about the impacts that divorce, the restructuring of families and judicial involvement have on children. A.R.S. § 25-351 . Both parties are required to attend when they are involved in dissolution of marriage, legal separation, annulment or paternity proceeding. A.R.S. § 25-352 . There is a fee for enrollment in the program; however, the fee is not to exceed fifty dollars. A.R.S. § 25-355 .

II. Parenting Time
1. Options
When parties are able to reach agreements, the court will adopt those agreements as long as they appear to be in the best interest of the minor child. Such agreements can be almost anything one could imagine. If the parties want to share equal parenting time, depending upon the age of the child, common schedules include the following:
• 3/2-2/3 (Mom Mon & Tue; Dad Wed & Thr; Mom Fri, Sat & Sun; next week reverse)
• 5/2-2/5 (Mom Mon & Tue; Dad Wed & Thr; Weekends Alternated)
• 7/7 (Week 1 Mom; Week 2 Dad)

2. How Decided
When parties are not able to reach agreements, the court will consider all evidence it believes to be relevant and also those factors set forth in the “Custody” section above and come up with a schedule that the court believes to be in the best interest of the minor child.
The Court has a set of model parenting plans that it may consider as well. Examples of the Model Parenting Plans for Maricopa County may be reviewed online. A determination of the best parenting schedule for a given situation usually requires substantial consideration of each parent’s work schedule.

I. Attorney’s Fees
Although we require payment in advance for most services, the court may order your spouse to reimburse you for some or all of those fees depending upon the circumstances of your case. In some instances, we may even find that your case warrants a motion for temporary orders seeking an order from the court that your spouse actually advance some money toward your attorney’s fees right away as opposed to seeking reimbursement at the end of the case. The statutes and caselaw we have relied upon when successfully securing such orders are set forth below to provide you with additional information.

A.R.S. § 25-324 permits the family law court to order a party to pay all or contribute to the attorney fees incurred by the other party. The primary focus of the court when considering such an award is on the financial resources of both parties and the reasonableness of the positions each party has taken in the case. The court has broad discretion when deciding whether or not to award attorney’s fees to a party.

Under subsection (B), there are a number of situations in which the family law court “shall” award fees as opposed to the “may” award attorney’s fees discussed above. These situations are set forth in A.R.S. § 25-324(B). The purpose of the statute authorizing court to order that one party pay the fees and costs incurred by the other party in a domestic relations case after considering the parties’ relative financial resources is to provide a remedy for the party least able to pay. Graville v. Dodge (App. Div.1 2000) 197 Ariz. 591, 5 P.3d 925.

Attorney fees, under this section governing awards of such fees in marriage dissolution actions, are awarded to insure that the poorer party has the proper means to litigate the action, not to punish litigants. Garrett v. Garrett (App. Div.1 1983) 140 Ariz. 564, 683 P.2d 1166. The purpose of awarding the Mother suit costs and attorneys’ fees in divorce action is to insure that Mother have the means to litigate her action free of the Father's hold on the family finances. Olsztyn v. Olsztyn (App. Div.1 1973) 20 Ariz.App. 545, 514 P.2d 498.

Relative financial disparity between the parties is the benchmark for eligibility for attorney’s fees in a divorce action. Breitbart-Napp v. Napp (App. Div.1 2007) 216 Ariz. 74, 163 P.3d 1024. The allowance of attorney’s fees and costs is left to discretion of trial court. Drees v. Drees (1971) 16 Ariz.App. 22, 490 P.2d 851; Reich v. Reich (1970) 13 Ariz.App. 98, 474 P.2d 457; Davis v. Davis (1969) 9 Ariz.App. 49, 449 P.2d 66; Burkhardt v. Burkhardt (1973) 109 Ariz. 419, 510 P.2d 735; Atkinson v. Atkinson (1965) 2 Ariz.App. 1, 405 P.2d 919; Babnick v. Babnick (1963) 94 Ariz. 338, 385 P.2d 216.

The trial court has discretion to award attorney fees in divorce proceedings, and the Court of Appeals will not disturb that finding absent an abuse of discretion. Gutierrez v. Gutierrez (App. Div.1 1998) 193 Ariz. 343, 972 P.2d 676. It is an abuse of discretion to deny attorney fees to the spouse who has substantially fewer resources, unless those resources are clearly ample to pay the fees. In re Marriage of Robinson and Thiel (App. Div.1 2001) 201 Ariz. 328, 35 P.3d 89.

My Spouse And I Cannot Agree On How To Handle Things While Our Divorce Is Pending. What Can I Do?

Not all family law matters require temporary orders. In fact, most do not. However, if the parties cannot agree on important decisions or cannot cooperate to accomplish tasks that must be accomplished while the case is pending, then temporary orders may be necessary.

This can be accomplished by filing a Petition for Temporary Orders pursuant to A.R.S. § 25-315. Temporary orders may also be utilized to secure exclusive use and control of the marital residence pursuant to A.R.S. § 25-315 (C). Some of the other justifications for seeking temporary orders include an inability to reach agreements with your spouse regarding how the two of you will handle such issues as child custody, parenting time, child support, spousal maintenance, attorney’s fees, payment of community obligations, and access to community resources while the divorce case is pending.

However, the decision to seek temporary orders should be carefully considered, as temporary orders will significantly increase the overall cost of a divorce.

If, after careful consideration, temporary orders appear necessary and justifiable in your matter, I have the knowledge, experience, and expertise to assist you in securing any necessary temporary orders, as I have done repeatedly over the years for countless clients involving such issues as exclusive use of a marital residence, child custody, parenting time, child support, spousal maintenance, and attorney’s fees.

If, for any number of reasons, you are handling your divorce case without the assistance of an attorney (which I cannot over-emphasize, is not likely to result in as favorable of an outcome), the Maricopa County Superior Court self help website has temporary orders forms and instructions available for free (see link below).

Dustin T. Dudley, Esq.
(602) 300-6777

SSC: Petition and Papers for Temporary Orders