Child Custody Attorney in Tucson
Issues Regarding Children
Custody – Terminology Or Philosophy?
We’ve used the word “custody” here only because that’s what most people think of when they talk about time with their kids during and after a divorce. It’s the wrong word to use; Arizona law doesn’t recognize the word anymore. If a lawyer walks into court and starts talking about “custody”, everyone in the room knows they’re a rookie. When a party uses the word “custody”you know their attorney hasn’t done a very good job of educating the client.
Instead, we talk about the two major aspects of “Custody”– Decision-Making and Parenting Time.
Is this just splitting hairs, or is there some meaning behind the distinction between “custody” and “decision-making”? Actually, if you stop and think about it, it makes perfect sense. “Custody” can be defined as the care, possession, and control of a thing or person. Now, “care” might be a good word to use, but who talks about their kids in terms of possession and control?
In a divorce, kids come first — we (parents, lawyers, judges) try to do what’s best for them. Using the term “custody” tends to place the kids as secondary to the alleged “rights” of the parties and makes parties fight for control over them. Children’s needs are and should be everyone’s primary consideration.
Since a person’s skill and experience with decision-making is generally not directly related to their parenting time, the law wants to take a separate and distinct look at the process of decision making for minor children and determine if the parents are able to work together on all decisions, or whether the decision-making responsibility should be divided up. The four areas where the court believes parents should consult with one another are: education, medical choices, religion, and personal care. In most cases, the court will order joint decision-making. The philosophy behind it is that children thrive best when both parents are involved in the important decisions of their lives.
Notice we use the word responsibility when it comes to decision-making. Making these decisions on behalf of your children is a serious and thoughtful responsibility – it is not a right or a trophy to be fought over and “won”in a courtroom. In fact, approaching decision-making arguments from this gotta win viewpoint may demonstrate to a court your complete lack of ability to make sound decisions!
Another consideration for determining decision making can be a review of how the family reached decisions before the divorce began. How did the parents select the doctor, the school, or the day care? Just because one parent may have done all the leg work in gathering the information and reviewing candidates, doesn’t necessarily mean they are better decision makers, but reminding each other of the processes you used during the marriage may be useful in developing a functional process for application after the divorce.
Who decides which school a child attends, which church they go to, which doctor they see? These decisions are huge and have lasting effects on the well-being and development of a child. So important are these decisions, courts separately consider each parent’s ability to make wise decisions for the child, and may allocate decision-making responsibilities between the parents. Decision-making maybe awarded to the parents jointly, solely to one parent, or it can be allocated based on the subject matter.
Philosophy of Parenting Time
The parenting time side of the equation deals with dates, times, places and scheduling in general. Things like how the week will be split up between the two homes, where the exchanges will occur, and who will be present at exchanges need to be decided. The Parenting Plan should also map out the arrangements for holiday parenting time and vacation schedules. These plans may also include transportation issues and costs.
Many parents begin with the best of intentions and believe that being detailed in a parenting plan is too restrictive, or confrontational, or portrays a lack of trust in the other parent. They think they don’t really need the details spelled out. However, experience shows that the best way to keep it from becoming confrontational is, in fact, to be extremely detailed. This provides certainty and security . It’s important to remember that parents always have the right, even the responsibility to be flexible and agree to changes in the Parenting Plan as circumstances change. At times when the inevitable disagreement arises, parents should return to their court-ordered parenting plan and follow it until they resolve their conflict.
There are no special rules about parenting time, but we find that there are two factors that are extremely useful for communicating to a client and a court, why a particular parenting time schedule works or doesn’t work. The first is frequency – how often the parent and child get to spend time together. Expert after expert tell us that the more frequent the parenting time, the better for the child. Generally, then, a parenting plan that has no more than 2-3 days between a child’s time with either parent is better than one that has 7 days between, especially for children under the age of ten. This is not always the case and every family is different. For some post-divorce families, a week-on, week-off schedule works great. The second factor is consistency. Consistency actually has two prongs to it. One is consistency in exercising the parenting plan; the other is really about predictability for the child. Predictability for the child means that a child can answer on his or her own, the pervasive post-divorce question, “am I with you tonight?” The parenting time schedule should be so predictable and consistent that the child knows, for example, on Tuesday, they’re always with daddy, or I’m with mommy on Fridays. The schedule has consistent days and the child can expect and rely on it.
This brings us to the “in practice” aspect of consistency. If a parent isn’t consistently exercising their parenting time, they are failing all the way around, to the detriment of their child. First, a child needs both their parents working together to raise them. It’s each parent’s responsibility to help guide and direct their child into adulthood. If a parent isn’t stepping up and using their parenting time for this purpose, then they’re failing their child. Second, a child comes to rely on that time with that parent. Believe me, they’re heartbroken when they have an expectation of that time with mommy or daddy and they get stood up. Once a child develops this kind of expectation, it’s heart wrenching for them when it goes unmet. These are the children who develop big trust issues that carry on into their adult lives. Finally, a parent who comes and goes from their child’s life on an inconsistent, self-centered basis, can lose parenting time in court. In our family law practice, when we develop a parenting time schedule with a client we keep these two factors in mind and we make sure the client fully understands that they are so important.
The statutes that provide the guidance judges look to are available for review online. Please take a look at www.azleg.gov. From there look at §25-403 and the statutes that follow it.
Fighting Over “Custody”
Custody battles can be the most expensive aspect of any Arizona family case. Not only do these conflicts exhaust bank accounts, they can work irrevocable harm on the parties and the children. Entering into a high conflict custody case should be a carefully considered option with realistic goals.
Financially, the attorney fees and other expert witness fees such as charges by children’s therapists and custody evaluators associated with contested “custody” can easily exceed $25,000 and in the cases you may see in the news, can enter into the hundreds of thousands of dollars range. While some cases are far less than this amount, you simply cannot underestimate the cost of fighting over issues like parenting time and decision making. Yet there is no doubt that many of these fights are legitimate and necessary. There’s no escaping a conflict when you feel your child is endangered, or when the other parent makes false accusations. In these, and many other circumstances, parents have little choice but to engage in a legal battle. In those cases, it becomes even more important to use cost-saving measures. Managing your costs, choosing your battles, focusing on reducing conflict, and choosing the right law firm can help manage these costs.
Support obligations are common in Arizona divorce cases involving children. Vary rarely is there a family law case where there is no support order. In Arizona family law cases, child support is calculated based on a strict formula. The formula is based on several factors including gross incomes of the parties, the number of overnights each parents gets with the children, costs of medical insurance and work-related childcare expenses. The child support calculator may be found online at www.azcourts.gov/familylaw/childcalculator.The statutes regarding support and the child support worksheets can be found on the internet at www.azleg.gov. From there, see §25-320.
Parenting Time and Child Support
Parenting time should maximize each parent’s time when they are not at work, so that their children can spend the most time with each parent. Child support calculations contain a factor for the number of parenting days exercised over the period of a year. Judges are very aware that some parents will take a position in court that expands their parenting time in a way that does not benefit the children, or is punitive toward the other parent. This assertion can result in the court awarding less parenting time, and it colors the case in a negative way that can spill over into other issues. It is important to put the child’s interests first and foremost in working out a parenting schedule, not the finances.
For more information about decision-making, child support, the parent education course required by the court, and other related topics, check out: