June 14, 2022
Whether divorce, legal separation, or child endangerment, any case involving a child can be an emotional and stressful period of time for the parties involved. We know that you as a parent want what's best for your child, but perhaps disagreements with the child's other parent are making it difficult to form a mutually-beneficial parenting plan.
At Monahan Law Firm, we take pride in developing long-lasting and personal relationships with our clients. We are here to support you and guide you through the legal process of child custody cases. Our Glendale child custody lawyers are here to represent you and provide the best legal advice so that you can focus on your family and your own emotional well-being.
Types of Child Custody
When deciding how to allocate time, funds, and care for your minor children it's important to understand the options available to you for legal-decision making and parenting time. You've probably heard the terms joint custody or sole custody, but legally there are two main types of child custody: legal custody and physical custody. So what does that mean? Who is responsible for the child? Below we have explained the difference between these types and how it affects you, your minor child, and the other parent:
Legal custody refers to the responsibility and authority to make long-term decisions for the child. This can relate to medical care. The power to choose a health care provider, including dental care, and sign off on medical treatments. It also affects education decisions, where the child attends school. Legal custody also awards the ability to make decisions about the child's religious upbringing.
Joint custody is when both parents share either legal and/or physical authority. There are countless ways this can be arranged. Generally, both parents are awarded legal custody, meaning they may both make decisions on behalf of their child's welfare. Typically, one parent is awarded primary custody and part-time with the other. Sometimes the child may alternate periods of time with each parent, perhaps living with one during the school year and with the other during summers. Joint custody arrangements are the optimal option in most cases.
A physical custody arrangement pertains to where the child lives or physically resides. Does the child have a primary residence? If the parents are separated across state lines, where does the child stay? Physical custody also covers matters like visitation rights and location and whether or not the child is permitted to travel with a parent.
You can probably guess what this type of custody means one parent has sole legal authority over the minor child. What is best for the child's well-being is the primary concern in family court. If one parent is deemed unfit, sole decision-making rights can be awarded to the other. An unfit parent is defined as one who fails to properly provide for the child and ensure their well-being. This is usually for extreme cases, as the court generally wants to keep both parents in the child's life. Extreme cases include instances of domestic violence, child neglect, child endangerment, sexual assault, spousal abuse, or criminal convictions that put the family at risk.
Who Can Be Given Custody of a Child?
In the state of Arizona, there is no legal presumption favoring one parent over the other. This means that the cultural understanding that "the mother always wins" does not apply in this area. The father has just as much of a chance to be awarded parental rights. In child custody hearings, the court begins with the desire to assign joint custody. Throughout a trial, evidence brought forth can affect that precedent.
In the case that clear and convincing evidence proves both parents are unfit, custody or visitation may be awarded to another party, like a grandparent or other family member. That family member will have to petition the court for legal guardianship and prove they are able and willing to care for the child.
Factors That Affect How Custody is Determined
Ideally, two parents can work together either independently or through mediation to arrive at a child custody agreement or parenting plan. An informal plan, one that is not legally binding, may be suitable in some situations like unmarried parents, but it's important to create a legal document in case conflict arises. If the parents can agree upon custody decisions, they can avoid going to a family court trial.
If the parents cannot agree and continue to dispute, the award of custody will be decided by a family court judge. Both parties can present evidence on their behalf and against the other in order to obtain custody. During this trial, the judge will be determining whether or not the parents are fit to provide for the child, but the final decision will be made in the best interest of the child's physical and emotional well-being. The ultimate goal is to assign joint custody, but this can not always be achieved.
Factors that affect custody include:
- Past, present, and future relationship between the child and each parent
- The relationship and interaction of the child with their parent(s), sibling(s), and other people who significantly affect their well-being
- The child's adjustment to community, school, and home
- The wishes of the child if they are of suitable age and maturity
- The mental and physical health of the child, parent(s), sibling(s), and other significant influences
- Which parent is more likely to be cooperative with the other (this does not include cases of domestic abuse, child abuse, child neglect, or sexual assault)
- If a parent intentionally misled the court to obtain a favorable decision, delay court proceedings, or waste money in litigation
- The presence of domestic violence or child abuse
- The nature and extent of coercion used to obtain specific legal-decision making or parenting time results
- If a parent was convicted of filing false allegations of abuse
- History of drug abuse or other substance abuse
- Criminal records
Essentially, the behavior of the parents prior to or during a custody battle can affect the outcome. The court will also look at income. If one parent will endure financial hardship due to a divorce or separation, child support payments or spousal maintenance may be awarded. And lastly, if the child is old enough to speak on their behalf, they may be asked about their preference. As you can see, there are a variety of factors that affect the child custody order.
Can a Custody Order Be Changed?
A custody order can be modified but requires extensive proof. If a parent would like to modify the order, they must prove that "the child's present environment may seriously endanger the child's physical, mental, moral, or emotional health."
Attempting to file a petition to modify a custody order without sufficient cause, can at best be rejected and at worst, reflect poorly on you as a parent. The court does not take kindly to parents who are simply attempting to harm the other parent or waste valuable legal resources.
Contact Our Firm For Help With Custody Issues
Whether you are ready to make your informal custody agreement legal, need legal mitigation in a divorce, or need legal representation for a child custody dispute, it is important to seek professional advice from a family law attorney. A family law attorney will help you navigate the ends and outs of the system, help you gather evidence, represent you in mitigation, and help avoid a trial. If your case goes to trial, it's imperative that you have experienced representation so that you may receive a favorable outcome. If you are having child custody issues, reach out to our compassionate, and knowledgeable legal team at Monahan Law Firm today.