In Arizona, Courts utilize the best interests of the child standard to determine parenting time and legal decision-making. Clearly, what one person may think is in the child’s best interest will vary from what another feels is in the best interest of the child. In an effort to make the standard more clear, the legislature created A.R.S. § 25-403, containing the factors the court was to hear to determine the best interests of the child. As set forth in A. R.S. § 25-403 the court will consider the following:
- The past, present and potential future relationship between the parent and the child.
- 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.
- The child’s adjustment to home, school and community.
- If the child is of suitable age and maturity and wished of the child as to legal decision-making and parenting time.
- The mental and physical health of all individuals involved.
- 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.
- Whether one parent intentionally misled that court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or parenting time preference to that parent.
- Whether there has been domestic violence or child abuse pursuant to § 25-403.03.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under § 13-2907.02.
When advocating for parenting time or legal decision-making, each one of these factors is relevant in determining the overall picture. The Court will weigh each factor (as applicable) to determine the “best interests of the child.”
But is the best interest of the child standard fair? Recently, a group of New Jersey dads filed suit against the family court judges asserting that such a determination violates their constitutional rights including their right to care, custody and control of their children. They claimed that a judge must determine that one parent is “unfit” by clear and convincing evidence as necessary in parental severance to prevent equal custody.
To require a parent to prove the other parent is unfit to the degree seen in a severance action is obscene. There are so many instances in which both parents are fit to parent, but one has a better schedule, or its better for the child to be with one parent during the school week to prevent multiple exchanges etc. There are so many reasons why the factors exist and why the “best interest of the child” continues to remain the standard.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. Working through the various factors and establishing your case for parenting time and legal decision-making can be tedious and difficult for most people. If you need legal advice, please feel free to contact our Family Law Section at 480.461.5300, or log on to udallshumway.com.