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There are two kinds of custody: legal custody and physical custody. When both parents share custody of a child after a divorce it is called joint custody. Joint custody may be either legal or physical custody. Physical custody, designates where the child will actually live, whereas legal custody gives the custodial person(s) the right to make decisions for the child's welfare. Joint custody does not necessarily mean equal custody. Rather, it merely means custody co-exists between parents with the physical arrangements coordinated in the best interests of the children. Joint custody will allow both parents an equal role in rearing their children, provided both parents can work together to make joint decisions. Joint custody does not necessarily take away the obligation of either parent to pay child support. Generally, there is no presumption in favor of joint custody. Joint custody may be granted if both parents agree, the parents submit a parenting plan, and the order is in the child's best interests. The courts will determine custody in Arizona based upon the best interests of the child. In determining the best interests of the child, the court will consider all relevant factors, including the wishes of the child and the child's parents; the interaction and interrelationship of the child with the child's parents, siblings and any other person with a significant relationship with the child; the child's adjustment to home, school and community; the mental and physical health of all individuals concerned; which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent; which parent is or was the primary caregiver of the child; and any other relevant factor. The non-custodial parent is entitled to reasonable visitation, which shall not be restricted unless the court finds serious endangerment to the child. The custody order may be modified if circumstances warrant. Such circumstances vary in each case, but may include loss of employment, disability, or extraordinary medical bills.
The court may order either or both parents of a child to pay an amount reasonable and necessary for the support of any minor child of the marriage, without regard to marital fault. In determining child support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty, although the primary caretaker of preschool children may not be required to obtain employment. Usually the amount of support is based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. Arizona has established child support guidelines which set the presumptive correct amount of support owed. Any deviation from the guidelines must include a written finding by the court that the application of the guidelines would be inappropriate or unjust. Factors the courts will consider in deviating from the guidelines include the financial resources and needs of the child; the financial resources and needs of the custodial parent; the financial resources and needs of the non-custodial parent; the standard of living the child would have enjoyed had the marriage not been dissolved; the physical and emotional condition of the child, and the child's educational needs; excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community property; and the duration of visitation and related expenses. An order of child support must also include the assignment of responsibility for providing medical insurance for the child and responsibility for payment of any non-covered medical expenses. The award of child support may be modified by the court upon petition of either party if a change of circumstance of the parents or child is proven. Child support and visitation are independent obligations. A person may not stop paying support if visitation is denied, and can not deny visitation for nonpayment of child support. A person who denies ordered visitation or fails to pay ordered child support can be held in contempt of court and states have various remedies, which vary by state, for pursuing claims against parents who owe back child support.
Modification of divorce decrees generally refers to a change in the order that was issued declaring the couple officially divorced. The divorce decree will often contain orders related to child custody and visitation, as well as division of assets, support payments, and other issues. Proceedings to modify a divorce decree are commenced by filing a petition to modify in the original divorce action decree. Local court rules and state rules of civil procedure, which vary, govern petitions to modify. Typically, to modify child custody or visitation, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification. Courts have the power to modify child custody arrangements to meet the needs of the child and to respond to changes in the parents' lives. A parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order. The change of circumstance usually involves something negative in the child's current environment--such as improper supervision, or harmful conflicts with the custodial parent or stepparent. In addition to showing a change in circumstances, the parent seeking a change of custody must show that he or she can provide a better environment for the child than the child's current environment.
The following are Arizona statutes:
25-403. Custody; best interests of child
A. The court shall determine custody, either originally or on petition
for modification, in accordance with the best interests of the child. The
court shall consider all relevant factors, including:
1. The wishes of the child's parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. 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.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful
continuing contact with the other parent.
7. Whether one parent, both parents or neither parent has provided
primary care of the child.
8. The nature and extent of coercion or duress used by a parent in
obtaining an agreement regarding custody.
9. Whether a parent has complied with chapter 3, article 5 of this title.
10. Whether either parent was convicted of an act of false reporting of
child abuse or neglect under section 13-2907.02.
B. In a contested custody case, the court shall make specific findings on
the record about all relevant factors and the reasons for which the
decision is in the best interests of the child.
25-403.01. Sole and joint custody
A. In awarding child custody, the court may order sole custody or joint
custody. This section does not create a presumption in favor of one custody
arrangement over another. The court in determining custody shall not prefer
a parent as custodian because of that parent's sex.
B. The court may issue an order for joint custody over the objection of
one of the parents if the court makes specific written findings of why the
order is in the child's best interests. In determining whether joint
custody is in the child's best interests, the court shall consider the
factors prescribed in section 25-403, subsection A and all of the
1. The agreement or lack of an agreement by the parents regarding joint
2. Whether a parent's lack of agreement is unreasonable or is influenced
by an issue not related to the best interests of the child.
3. The past, present and future abilities of the parents to cooperate in
decision-making about the child to the extent required by the order of
4. Whether the joint custody arrangement is logistically possible.
C. The court may issue an order for joint custody of a child if both
parents agree and submit a written parenting plan and the court finds such
an order is in the best interests of the child. The court may order joint
legal custody without ordering joint physical custody.
25-403.09. Child support
A. For any custody order entered under this article, the court shall
determine an amount of child support in accordance with section 25-320 and
guidelines established pursuant to that section.
B. An award of joint custody does not diminish the responsibility of
either parent to provide for the support of the child.
25-411. Modification of custody decree; affidavit; contents
A. A person shall not make a motion to modify a custody decree
earlier than one year after its date, unless the court permits it to be
made on the basis of affidavits that there is reason to believe the
child's present environment may seriously endanger the child's physical,
mental, moral or emotional health. At any time after a joint custody
order is entered, a parent may petition the court for modification of the
order on the basis of evidence that domestic violence involving a
violation of section 13-1201 or 13-1204, spousal abuse or child abuse
occurred since the entry of the joint custody order. Six months after a
joint custody order is entered, a parent may petition the court for
modification of the order based on the failure of the other parent to
comply with the provisions of the order. A motion or petition to modify a
custody order shall meet the requirements of this section. Except as
otherwise provided in subsection B of this section, if a custodial parent
is a member of the United States armed forces, the court shall consider
the terms of that parent's military family care plan to determine what is
in the child's best interest during the custodial parent's military
B. For the purposes of a motion to modify a custody decree, the
military deployment of a custodial parent who is a member of the United
States armed forces is not a change in circumstances that materially
affects the welfare of the child if the custodial parent has filed a
military family care plan with the court at a previous custody proceeding
and if the military deployment is less than six months.
C. A custody decree or order that a court enters in contemplation of
or during the military deployment of a custodial parent outside of the
continental United States shall specifically reference the deployment and
include provisions governing the custody of the minor child after the
deployment ends. Either parent may file a petition with the court after
the deployment ends to modify the decree or order, in compliance with
subsection F of this section. The court shall hold a hearing or
conference on the petition within thirty days after the petition is
D. The court may modify an order granting or denying parenting time
rights whenever modification would serve the best interest of the child,
but the court shall not restrict a parent's parenting time rights unless
it finds that the parenting time would endanger seriously the child's
physical, mental, moral or emotional health.
E. If after a custody or parenting time order is in effect one of the
parents is charged with a dangerous crime against children as defined in
section 13-705, child molestation as defined in section 13-1410
or an act of domestic violence as prescribed in section 13-3601 in which
the victim is a minor, the other parent may petition the court for an
expedited hearing. Pending the expedited hearing, the court may suspend
parenting time or change custody ex parte.
F. To modify any type of custody order a person shall submit an
affidavit or verified petition setting forth detailed facts supporting
the requested modification and shall give notice, together with a copy of
the affidavit or verified petition, to other parties to the proceeding,
who may file opposing affidavits. The court shall deny the motion unless
it finds that adequate cause for hearing the motion is established by the
pleadings, in which case it shall set a date for hearing on why the
requested modification should not be granted.
G. The court shall assess attorney fees and costs against a party
seeking modification if the court finds that the modification action is
vexatious and constitutes harassment.
H. Subsection F of this section does not apply if the requested
relief is for the modification or clarification of visitation and not for
a change of joint custody, joint legal custody, joint physical custody or