Whether going through a custody battle or not, most people are familiar with the longstanding terms of “custody” and “visitation”. Additionally, most people who have gone through a custody case are familiar with the term “best interests”.
Determination of the “child’s best interests” is usually the most highly contested issue in custody proceedings, and the services of a knowledgeable attorney are invaluable even if the child’s interests seem clear. That fact will become even truer next year.
Beginning January 1, 2013, Arizona’s custody laws are changing. Although some of the changes are only a conversion of the language used (e.g. changing “custody” with “legal decision-making” and “visitation” to “parenting time”), many others could have a significant effect on the ways that families resolve disputes regarding their children.
Factors to consider in determining the child’s best interest. Several changes will be made to the “best interests” factors. These changes include modifications to existing factors as well as the addition of new factors.
One new “best interests” provision specifically requires the court to consider the child’s past, present, and potential future relationship with the child. This factor is similar to the current question of which parent has provided primary care of the child (which will no longer be a factor), but includes foreseeable future developments in the parent-child relationship, as well. This could include how the family dynamic will change post-divorce and puts more focus on the fact that both parents may be more involved with caretaking than during the marriage when, perhaps, the parties mutually decided to split duties between child-rearing and working outside the home. An attorney who has experience with parenting plans and the ways that they change over time can help answer questions about what these future developments might be.
Another important change is that judges will also consider whether a parent intentionally misled the court in order to delay the proceedings or to attempt to tip the scales in their favor in the judge’s parenting time ruling. This provision is intended to foreclose the unethical strategy of delaying hearings to drive up the costs of the litigation, which can place undue pressure on a parent who cannot afford increasing legal costs. Those costs are not limited to court fees – driving from Peoria to a courthouse in Phoenix or Mesa for numerous hearings can create a substantial financial burden, especially when parenting time and divorce proceedings so often occur close together.
If there remains any doubt as to the legislature’s intent to place the child’s best interests above all else, the new statute clarifies that a child’s wishes will be considered if the child is old and mature enough to articulate and understand them – a potentially controversial issue in many cases.
Sanctions for litigation misconduct. Another significant change is that judges will be required to sanction parties who provide false statements (or falsely accuse another party of making a false statement) or for violating court-ordered disclosure rules. Such sanctions can include fines, charges of civil contempt of court, and modifications of legal decision-making or parenting time if it serves the best interests of the child.
Third party rights. The visitation rights of grandparents and individuals who stand in the place of parents will also change in 2013.
The new provision for third-party visitation will require that the child was born out of wedlock and that the child’s legal parents are not married when the third party files for court-ordered visitation. Judges will be required to give special weight to the opinions of legal parents about their child’s best interests before granting visitation to a third party, and third parties seeking visitation rights will be required to petition for those rights in the same action as the one filed to determine legal decision-making and parenting time.
These changes could make it more difficult to grandparents and other third parties to gain visitation rights, particularly if the third party does not act early enough in the process. If legal decision-making for your grandchild or a child for whom you acted as a parent becomes contested, it is in your best interest to consult with an attorney (as soon as possible) who can explain your rights and the best ways to protect them.
Drug and alcohol abuse. Among many other changes to court orders of legal decision-making and parenting time, the new laws establish a “rebuttable presumption” that it is not in the child’s best interests for a parent who has been convicted of a drug offense in the last 12 months to be granted sole or joint legal decision-making for their child. This means that judges will begin by assuming that the convicted parent should not be granted legal decision-making authority unless that parent can demonstrate that the child’s best interests are not affected by the conviction.
Overcoming the rebuttable presumption can be a steep hill to climb, especially without the help of an attorney who can analyze the conviction and decide how it will likely affect the judge’s findings about the child’s best interests.
Staying on top of a changing legal field. Whether you are recently separated or wish to change a long-standing parenting plan, understanding the effects of new laws can be an overwhelming challenge. If possible, do not attempt to tackle complex family law issues alone.