In 2013, New Statute Declares 'Custody' Out, 'Decision-making' In

1.3.13

By Norma Izzo Milner

(As published in the January 2013 issue of the Maricopa Lawyer)

Legal decision-making is now defined as the “… legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.” In joint legal decision-making, “… both parents share in the decision-making and neither party’s rights or responsibilities are superior except to specified decisions as set forth by the court or the parents in the final judgment or order.” Under SB1127, “sole legal decision-making means one parent has the legal right and responsibility to make major decisions for a child.”

Parenting time now means the schedule of time during which each parent has access to a child at specified times. Each parent during their scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child’s care.

The term “visitation” is now preserved for “… a schedule of time that occurs with a child by someone other than a legal parent.” Grandparent visitation rights and non legal parent (in loco parentis) rights are now covered in one section, section 25-409,” entitled “Third Party Rights.”

An important motivation underscoring the change in law is a need to shift the perspective of ownership associated with the word “custody.” The change supports parents to focus on their rights and responsibilities as parents, rather than their rights and entitlements as parents. The word “custody” sets a tone of power-struggle, which covertly or overtly, can put the children at risk to be in the middle. When all is said and done, however, the primary factor continues to be children’s rights as highlighted in the constant and unchanged language“best interests of the child.”

Section 25-403 lists out the factors the court must look to in order to make a determination on legal decision-making and parenting time, with a focus on the child’s physical and emotional well-being. The new law eliminates the requirement for the court to factor in the wishes of the child’s parent or parents as to custody, and whether or not a parent has provided primary care of the child. However, the court must still consider “[t]he past, present and potential future relationship between the parent and the child.”

A newly drafted section 25-403.01 has been added providing the court factors to consider when deciding to award sole or joint legal decision-making. Unlike section 25-403, which focuses on the dynamics of the child’s best interests, this section focuses more on the interpersonal relationship between parents and whether or not their specific and personal dynamic will allow for parents to work together and make decisions jointly. SB1127 provides an additional factor regarding “[t]he past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint legal decision-making.”

Importantly, and without regard to who has legal decision-making authority, each parent “… is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact unless the court finds, after a hearing, that parenting time would endanger the child’s physical, mental, moral or emotional health.” The court shall not consider either the parent’s or the child’s gender when approving parenting plans.

While I have shared with you some of the highlights, you will need to familiarize yourself with the new statutory language in order to understand the full scope of all the little nuances and changes. As for the effect it will have on your active cases, the court will not apply the new law based on the time when the matter was initiated, but will apply the new law when making a final decision or entering an order as of January 1, 2013.

Will this change in law allow you to reopen a matter? In all likelihood, the answer is no, but time will tell. These changes are a work in progress and the language will likely change again in an attempt to rectify any shortcomings that come to light over the next year.