The first question that most people ask in a divorce is, “How does the court determine which parent will get custody of the children?” In Arizona there are two types of custody; legal custody and physical custody. Legal custody addresses which parent will make the major decisions concerning the child such as health care decisions, where the child will go to school and what religion the child will be raised. When the parties have joint legal custody they make the major decisions concerning the child together. If one parent has sole legal custody, then that parent can make the final decision when there is a disagreement between the parents in regards to the child’s education, religion or medical treatment. In most cases the court grants joint legal custody. However, just because the court orders joint legal custody, it does not necessarily mean that the court will order joint physical custody.
Physical custody refers to each parent’s parenting time with the child. When the parents have equal parenting time with the child, then the parents are said to have joint physical custody. When one parent has the majority of the parenting time, then they are often referred to as the “primary residential parent” and the other parent’s time is referred to as visitation or parenting time.
So what factors does the court consider when determining which type of custody is appropriate? The court will make its decision based on what is in the “best interests of the child”. The factors that the court evaluates when deciding what is in the best interests of the child are set forth by statute as follows:
- The wishes of the child’s parent or parents.
- The wishes of the child.
- The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblingsandany other person who may significantly affect the child’s best interests.
- The child’s adjustment to home, school and community.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
- Whether one parent, both parents or neither parent has provided primary care of the child.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under.
- Whether there has been domestic violence or child abuse.
Now that you know the factors that the court considers here are some things that you can do to “stack the deck” in your favor when it comes to determining who will be awarded custody of the children.
- Utilize character witnesses: Find people who will testify as to your strengths as a parent. These can be friends, family members, the child’s teachers or other members of the community.
- Do not alienate the other parent from the child: Divorces can be very emotional. When going through a divorce, you might be tempted to speak negatively about the other parent in the presence of the child. Resist this urge. Do not put the child in the middle of the divorce by forcing him or her to “choose sides.”
- Ask for a custody evaluation: If you and your spouse are unable to reach an agreement regarding child custody, the judge may order a custody evaluation. The custody evaluator will then evaluate what is in the best interests of the child based on his or her interviews with the parents and observations of the parents’ interaction with the child. The custody evaluator will then produce a report to the court with his or her recommendation regarding child custody.