Arizona Legislature Demonstrates Support of Joint Custody in New Law

With all the news coverage of Arizona’s new immigration law, much less attention has been paid to other new laws coming out of the recently ended legislative session. One such law, SB 1314, may affect custody decisions regarding minor children in contested divorces and other child custody proceedings.

The new law, which was signed by Governor Brewer on May 3, 2010, amends three sections of Title 25 (Marital and Domestic Relations). Most notably, although it stops short of creating a legal presumption in favor of joint custody, it does express a strong preference for it. The new law also allows courts to sanction parties in custody cases, and adjusts the rules that govern moving a child.

The Child’s Best Interest

The first provision expressly states that, absent evidence to the contrary, it is in the child’s best interest “to have substantial, frequent, meaningful and continuing parenting time with both parents” and “to have both parents participate in decision-making about the child.” The new law then calls on courts to apply the family law provisions of Title 25 accordingly.

The provision as passed by the legislature and signed by the governor does not create a presumption in favor of either joint legal custody or joint physical custody (although an earlier version that the legislature considered-but rejected-did create such a presumption). Nevertheless, the language in the new law does track closely with the definitions of joint legal custody and joint physical custody (references to “parenting time” correspond to physical custody and “decision making” to legal custody), so judges will certainly be aware that the legislature intended to demonstrate that it favors joint custody.

Currently, judges use a list of factors outlined in section 25-403 to help determine what is in the best interests of the child when custody is contested. It may be a few months before we know exactly how the judiciary will implement the new law, but it is likely that those same factors will still be considered, but the judge will begin from the presumption that parenting time and decision-making with both parents is in the child’s best interest, and then consider the factors that may require the court to deviate from that preference.

The new law makes no change to protections that were already in place to prevent joint or sole custody with an unfit parent – instances such as significant domestic violence, recent drug offenses, or if the parent is a registered sex offender or is convicted of first-degree murder of the other parent.

Attorney’s Fees

A second provision of the new law concerns sanctions in custody cases, in the form of awarding attorney’s fees to the other party. The new law directs the judge to award attorneys’ fees to the other party if one party filed a petition in the custody hearing for an improper purpose, such as to harass the other party, create delay, or increase litigation costs. Attorney’s fees would also be awarded for filings that were not grounded in fact or based on law, or other filings that were not in good faith.

Here, the legislature was likely responding to anecdotal evidence that custody disputes often erupt into unproven accusations and name-calling that do nothing to further the child’s best interests. As with the previous provision, the legislature considered, but ultimately rejected, stronger measures that would require one party to pay attorney’s fees to the other party if he or she challenged the other party’s fitness to be part of joint custody and lost. Under the new law, there is no penalty for unsuccessfully challenging the fitness of the other parent, unless it was done improperly.

Moving a Child

The third provision makes a small change to the Arizona law that governs the notice that must be made to the other parent if the custodial parent moves outside Arizona, or moves more than 100 miles within Arizona, with the child. The existing law allows the court to sanction a parent who moves with the child without notifying the other parent, while the new law requires the court to issue the sanction, but only applies when the parent has done so without good cause.

Like nearly all laws passed in this legislative session, these new provisions go into effect 90 days from when the legislature adjourns; they will be effective on July 29, 2010. If you have any questions about how these new provisions may affect your rights as a parent, talk to an experienced family law attorney who can explain the provisions of the new law and help you protect your legal rights – and the rights of your child.