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Arizona’s ‘Farewell to Custody’



By Ralph Greco, Jr.

Arizona no longer has a child “custody” statute. In fact, the word ‘custody’ has been removed from all Arizona statutes governing decision-making and residential placement of children in family court cases.  A simple one word or phrase can be interpreted a number of ways contingent on a judge’s tastes and the repercussions for families can be enormous. But a change in Arizona law, what is being generally referred to as a ‘Farewell to Custody’ brings new challenges to divorcing parents and their lawyers.

“As of January 1st 2013 Arizona no longer uses the word custody to deal with a parent’s relationship with their child. Custody no longer exists now in Arizona, it has been renamed ‘legal decision authority’… decisions over a child’s heath, education and personal care matters,”  says Monica Donaldson Stewart of the Donaldson Stewart P.C. family law firm. “My clients come to me often saying they want full custody, meaning they want their child to live with them, but the word custody doesn’t mean what they think it means. It means decision making for the welfare of the child as well.”

As attorney Donaldson-Stewart further reminds us with a good-natured, yet well-seasoned warning: “Family law is subjective to a judge’s interpretation of facts on any given day.”

Arizona is not the only state working hard for shared ‘parenting times’ as Texas, Florida, and North Dakota now require that each parent in a divorce sees at least 40 percent parenting time. According to attorney Donaldson-Stewart this implied practicality has been in play since 2010. “It’s considered in a child’s best interest that both parents be in decision making, unless there is good reason to assume one should not be. Judges will start from that assumption.”

Decades ago Arizona, like many states, often settled custody matters on what was called a ‘tender years doctrine,’ which simply stated, that a child was best off with the mother. But as Monica reminds us “Families today look different then they did 20 years, courts need to be gender blind, not allowed to consider gender of parent or child. Other factors like, who else makes up the family members in the household, what school does the child attend and even in some cases the children’s wishes can all be factors in a court’s ultimate decision.”

Although she is not trained in psychology, Monica agrees with the general assumption that healthy parent-child relationships, with healthy co-parenting, maximize a child’s mental health.

In fact, psychologist William Fabricius, an associate professor of psychology at Arizona State University, was actually instrumental in crafting changes to the new Arizona law. As an expert in divorce, Fabricius claims that there is plenty of research to show that the amount of parenting time a child has with his or her father after parents separate is closely related to whether that child and their father ever build a long-term close relationship. And this does mean that a better relationship with the father will detract from a child’s relationship with his or her mother, in fact, research shows the opposite comes to pass.

In addition to the semantic change to the law, the court has changed and consolidated the statue whether 3rd parties-‘non parents’-have rights and how they apply in the real world with children. Once again, Donald-Stewart steps in to explain: “The term ‘visitation rights’ is now called ‘parenting time’ because it was generally considered that parents, even ones who do not have their child living with them, do not visit with their child, nor do they ever babysit them. Visitation applies to non parent’s time spent with grandparents, step parents or others close to the child who want to participate in the child’s life.”

All these changes, whether simply semantic or not will certainly have a profound effect on how attorneys at Donaldson-Steward and others in AZ do their job.

How does Monica Donaldson-Stewart really feel about the changes?

“I live a rather skewed perspective as the people coming to be are in some sort of conflict. So I certainly will be better able explain what will be expected in my client’s case, what their rights and their obligations are.”

Time will tell what other changes Arizona attempts to make or how their farewell to custody begins to affect other state’s family law statutes.

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