1.         THE LEGAL BASIS FOR CHILD CUSTODY ORDERS

Arizona uses the standard of "THE BEST INTERESTS OF THE CHILD" to determine custody placement and visitation for the family.  The Arizona child custody statute is A.R.S. Section 25-403, and it can be found on Google.  

A.  The Basic Statute.

25-403. Legal decision-making; best interests of child

A. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child's physical and emotional well-being, including:

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 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 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 pursuant to section 25-403.03.

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 complied with chapter 3, article 5 of this title.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

B. In a contested legal decision-making or parenting time case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.

 

B.  Father's Rights.  

There has long been a strong public policy in Coconino County to assure that children have frequent and continuing access to both parents.  That policy is now part of state statutes in A.R.S. Section 25-103(B) which states:

25-103. Purposes of title; application of title

A. It is declared that the public policy of this state and the general purposes of this title are:

1. To promote strong families;

2. To promote strong family values.

B. It also is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child's best interest:

1. To have substantial, frequent, meaningful and continuing parenting time with both parents.

2. To have both parents participate in decision-making about the child.

C. A court shall apply the provisions of this title in a manner that is consistent with this section. 

Both parents should ideally cooperate with each other and share the rights and responsibilities of parenting in order to provide for the best interests of the child.  In the event that shared parenting or continued contact with a parent would be detrimental to a child then the health, safety and welfare needs control the decision.  This statute has been cited as authority for both parents to have as much time with the children as possible.

In the ordinary course of events, there is a practical presumption that school age children should be in the 50-50 parenting time access of both parents.

C.  Domestic Violence and Child Abuse.  

There is a special statute dealing with domestic violence.  It is A.R.S. 25-403.03.  It states:

25-403.03. Domestic violence and child abuse

A. Notwithstanding subsection D of this section, joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.

B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. The court shall consider a perpetrator's history of causing or threatening to cause physical harm to another person.

C. To determine if a person has committed an act of domestic violence the court, subject to the rules of evidence, shall consider all relevant factors including the following:

1. Findings from another court of competent jurisdiction.

2. Police reports.

3. Medical reports.

4. Records of the department of child safety.

5. Domestic violence shelter records.

6. School records.

7. Witness testimony.

D. 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. This presumption does not apply if both parents have committed an act of domestic violence. For the purposes of this subsection, 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 to protect the other parent who is seeking child custody or to protect the child and the child's siblings.

E. To determine if the parent has rebutted the presumption the court shall consider all of the following:

1. Whether the parent has demonstrated that being awarded sole or joint legal decision-making or substantially equal parenting time is in the child's best interests.

2. Whether the parent has successfully completed a batterer's prevention program.

3. Whether the parent has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.

4. Whether the parent has successfully completed a parenting class, if the court determines that a parenting class is appropriate.

5. If the parent is on probation, parole or community supervision, whether the parent is restrained by a protective order that was granted after a hearing.

6. Whether the parent has committed any further acts of domestic violence.

F. If the court finds that a parent has committed an act of domestic violence, that parent has the burden of proving to the court's satisfaction that parenting time will not endanger the child or significantly impair the child's emotional development. If the parent meets this burden to the court's satisfaction, the court shall place conditions on parenting time that best protect the child and the other parent from further harm. The court may:

1. Order that an exchange of the child must occur in a protected setting as specified by the court.

2. Order that an agency specified by the court must supervise parenting time. If the court allows a family or household member to supervise parenting time, the court shall establish conditions that this person must follow during parenting time.

3. Order the parent who committed the act of domestic violence to attend and complete, to the court's satisfaction, a program of intervention for perpetrators of domestic violence and any other counseling the court orders.

4. Order the parent who committed the act of domestic violence to abstain from possessing or consuming alcohol or controlled substances during parenting time and for twenty-four hours before parenting time.

5. Order the parent who committed the act of domestic violence to pay a fee for the costs of supervised parenting time.

6. Prohibit overnight parenting time.

7. Require a bond from the parent who committed the act of domestic violence for the child's safe return.

8. Order that the address of the child and the other parent remain confidential.

9. Impose any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.

G. The court shall not order joint counseling between a victim and the perpetrator of domestic violence. The court may provide a victim with written information about available community resources related to domestic violence.

H. The court may request or order the services of the department of child safety if the court believes that a child may be the victim of child abuse or neglect as defined in section 8-201.

I. In determining whether the absence or relocation of a parent shall be weighed against that parent in determining legal decision-making or parenting time, the court may consider whether the absence or relocation was caused by an act of domestic violence by the other parent.

D.  Substance Abuse.  

There is also a special statute dealing with Substance Abuse.  It is A.R.S. 25-403.04.

25-403.04. Substance abuse

A. If the court determines that a parent has abused drugs or alcohol or has been convicted of any drug offense under title 13, chapter 34 or any violation of section 28-1381, 28-1382 or 28-1383 within twelve months before the petition or the request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child's best interests. In making this determination the court shall state its:

1. Findings of fact that support its determination that the parent abused drugs or alcohol or was convicted of the offense.

2. Findings that the legal decision-making or parenting time arrangement ordered by the court appropriately protects the child.

B. To determine if the person has rebutted the presumption, at a minimum the court shall consider the following evidence:

1. The absence of any conviction of any other drug offense during the previous five years.

2. Results of random drug testing for a six month period that indicate that the person is not using drugs as proscribed by title 13, chapter 34.

3. Results of alcohol or drug screening provided by a facility approved by the department of health services.

2.         BEFORE YOU MOVE OUT . . .

If you are living with your child and the other parent, do not move out without your child or this fact alone may determine the final outcome!  A skillful attorney will argue that you've acknowledged the appropriateness of the other parent as a caretaker by your own action in leaving the child in their care.

3.         DOMESTIC VIOLENCE

The Courts in Coconino County, and law enforcement take domestic violence very seriously.  If you or your children are assaulted, or threatened with violence call the police or sheriff's office.  (If you are a man, and your wife attacks you, do not defend yourself unless she has a gun or a knife.  Allow her to hit you, and then call 911 if you have any bruises or if you have tape-recorded her threatening you.)  As soon as possible, file a petition for order of protection.

4.        GET COUNSELING

I have seen several cases where a parent who is an emotional mess, has gone to a counselor, and the Court has taken the testimony of counselors very, very seriously.  If you are stressed, this is a good time to getting counseling.  This is a time of great change, and you will almost always greatly benefit from counseling.  

5.         POLISH UP YOUR OWN GOOD POINTS

Concentrate on distinguishing your "PARENTING ABILITIES" and "bonding" with the child from that of the other parent.  the proofs as to these considerations often will determine the "Burden of Proof" which will be applied by the judge.  Avoid "THROWING DIRT" at the other parent.  If it must be done let your WITNESSES do it.  Otherwise you may appear angry and not motivated by your child's "BEST INTERESTS."

6.         STAY AS CLOSE AS POSSIBLE TO THE CHILD

In deciding custody cases, the Coconino County Superior Court and the Court's evaluator from the "Conciliation Court" will usually refer to how well the Temporary Orders have worked.  In deciding Temporary Orders, the Court will usually refer to how often each of the parents have seen the children since the separation, and if the custodial parent has denied visitation to the non-custodial parent without good reason.

7.         PREPARE A CHRONOLOGY

Prepare a chronology of all relevant events, occurrences or possible factors which have influenced your child's upbringing (i.e. parents' work schedules, interference with custody or visitation, education, etc.)

8.         KEEP A JOURNAL

Keep a journal of all events from now on.  Note the times of the start and finish of all calls from your spouse, and statements made.  Note "pick up" and "drop off" times of children.  Do not editorialize or make comments like "she's such a bitch," "he's such a S.O.B.," because this Journal may be seen by the other side and by the court.  Just stick to the facts.  Use a spiral bound notebook so that you can show that you didn't add any pages after the fact.  Make your notes as soon as possible after an event, call, pick-up or drop-off occurs.

The litigation process will often take 6 to 18 months before its  conclusion.  Witnesses who are willing to help now need to GIVE WRITTEN STATEMENTS NOW, otherwise, cold feet, pressure from your spouse or family or claimed loss of memory may cost you the proof needed to win your case and to present the truth to the court.  Also, these statements can be considered by the evaluator who will prepare a report to the Court.

Ask your friends now to write letters of reference about you and your parenting.  The focus should not be what may be wrong with the other parent.  The focus should be on what is right with you and your parenting.  For example, the letters should say how long the writer has known you, their relationship with you, how often they have seen you with your child, and if they would trust you to care for their own child.  The letters should include the writer's address and telephone numbers.  It is better for the letters to be typed.  These letters should be signed, hopefully before a Notary Public.

10.         TAKE PARENTING CLASSES

In Flagstaff, Parenting Arizona (formerly Parents Anonymous) offers several free parenting classes, and they offer child care at the same time.  Parenting classes show the Court that you are committed to be a good parent for your child.  I have never seen a parent be harmed by taking parenting classes; however I have often seen parents be helped by taking parenting classes.)  For more information call 773-9133. 

Also, consider subscribing to magazines such as "Parenting."  You can see a full range of magazines by going to Barnes and Noble.   

11.       OBTAIN ALL AVAILABLE SUPPORTING DOCUMENTATION

Your attorney can subpoena the employment records, child's school records, family medical records, pension information, insurance claims, financial statements and loan applications.  Let your attorney know what information may be valuable to obtain.

12.       IDENTIFY ACTS OF PARENTAL ALIENATION

This is one of the most destructive things that commonly occur in divorce.  Fathers are particularly vulnerable in our present cultural climate.  The problem may be mild to severe.  The following publications may be found in a good library and discuss many facets of the problem:

            "The Parental Alienation Syndrome" by Richard A. Gardner

            "Children Held Hostage," by Stanley Clawar, Ph.D.

            "Created memory in children" by Terence Campbell, Ph.D.

            "False sex abuse allegations" by Ralph Underwager, Ph.D.

            "The Suggestibility of Children's Recollections" American Psychology Association

Help your attorney develop questions for the other parent and their witnesses so that interrogatories, requests for admissions and depositions can be done EARLY in your case.  Do not miss deadlines for answering or filing your discovery request.  Failure to prepare is not reason for the court to continue your case and often, admissible evidence is excluded based upon failure to comply with or participate in discovery within prescribed deadlines.

14.       THE ROLE OF THE EXPERT WITNESS

            Do you need PSYCHOLOGICAL or MEDICAL testimony?

Often it is particularly important for fathers to use psychologists in order to establish adequate proof that the children will develop as well under his care than the mother's.  (Refer to Michael Lamb's research collection entitled "The Role of the Father in Child Development" as a valuable resource).

The Coconino County Court of Conciliation has an evaluator who will prepare a report to the Court if you and your spouse do not agree in mediation on the issue of custody.  If your spouse hires a private expert, then you should also have one.  Experts can base their opinion on otherwise inadmissible evidence such as hearsay.  To save money, the parties can agree upon a single expert to do a custody evaluation.

Disclose the name of your expert before the deadline to do so, otherwise, you may not be able to use his or her testimony.

15.       DEVELOP YOUR "THEORY OF THE CASE" AND STICK WITH IT

Rather than concentrating on marginal neglect or abuse consider the approach that "my spouse is doing his or her best, but I can do better and the children will do better with me."  Then stress your positives.

16.       PREPARE A "TRIAL BRIEF"

This should contain: a) a history of your child's development including your involvement and b) summary of the testimony of each witness you expect to call and proposed conclusions of law.  This will be submitted to the court at about 24 hours before trial with a copy to your spouse's attorney.

17.       WASTE

If your spouse has spent an abnormal amount of money for gambling or similar behavior, you can seek for them to reimburse you for half of the money lost in those areas.  This is a difficult, but not impossible task.

18.       BUSINESS VALUATION

If your spouse has a business, then you can be compensated for half of the value of the business if it was formed during the marriage, or for half of the increase in the value of the business if the business was formed before the marriage.  

19.       SPOUSAL MAINTENANCE

There are three parties to every divorce:  the Husband, the Wife and the Internal Revenue Service.  If money is to be paid by one spouse to the other, it might be advantageous to characterize those payments as spousal maintenance, instead of as a property distribution.  Spousal Maintenance is deductible to the paying spouse and taxable to the receiving spouse.  However, the paying spouse is often in a much higher tax bracket than the receiving spouse, which means that there is a significant tax advantage, which can lead to the paying spouse paying a greater amount of pre-tax dollars as spousal maintenance, instead of a lesser amount of post-tax dollars as a property distribution. 

20.       DRUGS AND ALCOHOL

If you drink alcohol (even in moderation) or use drugs, there is a strong chance that your spouse will try to use that against you, even if he or she also drinks or uses drugs. 

If you drink alcohol, I recommend that you stop drinking NOW, even if you drink in moderation.  Most people do not drink to excess, however under the stress of a divorce, it is very easy for their drinking to escalate.  To be on the safe side, and to protect your case, it can be very helpful to be able to say that you have not had any alcohol since a specific date, such as when you first met with me.  (If you drink only in social settings, you can pick drinking socially again after your case is over.  Most people who drink socially are not alcoholics and I am not saying that everyone must stop drinking alcohol forever.  However, if you find yourself really wanting to drink during your divorce, despite my advice that you not do so for this temporary period of time, then this can be a warning sign.)

If you use drugs, including marijuana, stop doing so NOW.  Once you have gotten all drugs out of your system (a week for most drugs and a month for marijuana) you can take a urine drug test to show that you are drug-free NOW.  (The Coconino County Superior Court is much more interested in you showing that you are drug-free now, and not so interested in your drug use history.  So, if you become clean and sober, past use of drugs will not be held against you.  On the other hand, I have seen cases where parents who keep on getting dirty urine screens losing all contact with their children.) 

If the use of alcohol or drugs has made your life unmanageable, or if you find that you are powerless over the obsession to drink or use drugs, you can get help such as through Twelve Step Groups like Alcoholics Anonymous and Narcotics Anonymous.  You can find their websites on line by simply googling their names, and they are both in the white pages of the phone book.   

On the other hand, this is NOT a good time to stop smoking tobacco.  You will be going through enough stress now, without adding to that.  (Stopping tobacco use is harder than quiting alcohol, or drugs, including heroin.)  Still, you should try to not smoke in a confined space with the children, such as inside the home or a car.