There is a common misconception that Arizona custody agreements, whether obtained through a divorce or paternity action, always favor the maternal parent. This concept generates a concern for dads that moms do not necessarily face. Dads may fear a lengthy, costly legal battle which seems more likely to result in an agreement that will favor mom when awarding custody rights. As a result, dads often choose not to pursue legal decision-making (“legal custody”) and parenting time (“physical custody”) rights in Arizona.
Fortunately, this widely held belief is inaccurate. In reality, legal decision-making and parenting time agreements (“parenting plans”) are not decided based on the gender of the parent. The only gender affected procedure is establishing paternity, purely due to the fact that mothers generally give birth to the child, making maternity presumed. In paternity matters, the Court must make a formal determination finding dad to be the biological father of a minor child- thereafter custody rights may be established.
Paternity can be established once genetic testing and/or a paternity judgment is made. This adds an extra step to the process for dads establishing Arizona custody agreements, which can seem daunting. However, following the paternity establishment process, the gender of the biological parents is no longer a factor for the court to consider.
Family court judges do weigh many other factors in determining what is in the best interests of the child when awarding custody rights, though. A.R.S. § 25-403(A) lists those factors as the following:
1. The past, present and potential future relationship between the parent and the child.
2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
3. The child’s adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
10. Whether a parent has complied with chapter 3, article 5 of this title.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
These parameters are designed to be flexible, so that they can be applied to the facts of a wide variety of unique cases. Thus, every scenario is judged on a case-by-case basis, and because no two cases are alike, it is nearly impossible to presume that the legal system favors one gender over another. For example, if a parent can prove the existence of substance abuse or domestic violence in the home of the other parent, this may affect such factors as “the interaction and interrelationship of the child with the child’s parent” and “the mental and physical health of all individuals involved.” Under those circumstances, gender of a mother versus a father is irrelevant—the most important consideration is the child’s safety and well-being.
At Harlow Spanier & Heckele, we represent both mothers and fathers establishing Arizona custody agreements, either through divorce, paternity, or post-decree family matters. Sometimes, we are able to work out custody agreements with opposing parties (or through opposing counsel) in either Court ordered mediation or informal settlement. However, if negotiations in mediation or settlement do not yield successful cooperative resolutions, we avow to stand by our clients through the entirety of the court process.
When this occurs, both parties will generally submit proposed parenting plans, and the court, in weighing the best interests of the child, may adopt a plan which intends to maximize parenting time for both parties. In cases where there are significant or substantial risks to the safety of a child, the court may award sole legal-decision making rights to the parent, regardless of gender, who acts in good faith to protect the child from witnessing or experiencing any risk of harm.
Even if sole legal decision-making is granted in favor of one parent, Arizona Revised Statute § 25-403.01 dictates that “a parent who is not granted sole or joint legal decision-making is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child’s physical, mental, moral or emotional health.”
As you can see, the statutes regarding custody never refer to “mothers” or “fathers,” valuing one gender over another, but only to “parents.” In our experience, family courts generally do not show gender bias in their decision-making process, but rather encourage parents to consider what is in the best interests of the child. As a result, we encourage dads to attempt to achieve a maximized custody agreement; and avoid giving up a claim to parenting time and legal decision-making rights on the basis that Arizona is a “Mother’s State.”
If you have any questions about your options when establishing Arizona custody agreements, call our office at (520) 339-6804 or email [email protected] for a consultation.
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