The only way that the child’s wishes can be considered is through either an interview with the Judge or more frequently through child psychologist expert testimony. In order to comply with Rules of Evidence, a proper foundation by the psychologist to opine the child’s wishes must be laid. The psychologist has to be asked questions regarding the suitable age and maturity of the child. Typically, if the Judge is doing the interview, he or she will be looking for the same foundation. The statue contains specific language requiring the Court to make those specific findings in order to have a factual determination whether a child is of suitable age or maturity regarding the child’s wishes.
Another amendment to the Custody Statute requires the Judge to consider the past, present and potential future relationship between the parent and the child and eliminated prior language that the Court consider whether one parent, both parents or neither parent has provided primary care for the child.
Arizona Revised Statues Section 25-103(B) declares the public policy of Arizona to be (absent contrary to evidence) that both parents have substantial, frequent, meaningful, and continuing parenting time. However, nowhere in the statue does it state that there is an actual presumption of equal parenting time nor does the statue require that in order for the substantial, frequent, meaningful, and continuing parenting time requirement to be met that there be equal parenting time. A.R.S. 25-403.02 makes it clear that shared legal decision making does not necessarily mean equal parenting time. There have been no Arizona Court Cases to date interpreting this language as equating to equal parenting time where the parties share legal decision making.
The Court is also required to adopt a parenting plan that provides for shared legal decision making and that maximizes the parties respective parenting time. But, this decision must be consistent with a child’s best interests and balancing between the presumption of joint legal decision making and maximization of parenting time all the other factors have to be applied and the child’s best interest is the most important factor.
Joint legal decision making cannot be ordered if there is a Court finding of significant domestic violence and a rebuttable presumption for joint parenting time. Also, if the Court has determined that a parent has abused drugs or alcohol or has been convicted of any drug offense within twelve months prior to the request to modify custody, then there is a rebuttable presumption that sole or joint legal decision making by that parent is not in the child’s best interest.
The custody of a child is a serious matter, not only to the child, but to family members, and even the law. Doing what’s best for a child should be of utmost importance in any case. If you, or someone you know, have questions about the custody of a child, contact a divorce lawyer in Phoenix so that your concerns are addressed in a timely and professional manner.