A new case in Arizona has taken the presumption of equal parenting time a step further.
If you are a parent involved in a child custody case, you may be arguing over whether parenting time should be equal. A new case decided at the court of appeals has made a number of findings about equal parenting time. The statutes in Arizona said in 2013 that parents are entitled to “maximum parenting time.” A.R.S. §25-403.02. This is unique because the appeals court rarely disturbs parenting time decisions made in a trial court.
We review a parenting- time order for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion occurs when the court commits legal error, Arpaio v. Figueroa, 229 Ariz. 444, 447, ¶ 7 (App. 2012), or “when the record, viewed in the light most favorable to upholding the trial court’s decision, is ‘devoid of competent evidence to support’ the decision,” Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)).
Barron v. Barron, 1 CA-CV 17-0413 FC, was filed on July 31, 2018. In that case, the parents agreed to temporary orders in which Husband had more parenting time than Wife while Wife trained to become a firefighter / EMT. The parents had agreed to joint legal decision-making, but Husband had time every Thursday through Sunday until Wife finished training and found a job. Wife finished her training, but she didn’t take a full time job or petition for a change in parenting time. The divorce decree, 14 months later, reduced Husband’s parenting time to one overnight each week plus every other weekend from Friday through Monday morning.
The trial court’s decision was supported by the following findings by the trial level judge:
A totality of circumstances tip the scales in favor of designation of [Wife] as primary residential parent.
A. [Wife] has been the primary care provider for the children prior to this action. The children have historically spent more time with [Wife] than [Husband] since their birth.
B. The children have not fully adjusted to equal parenting time during the pendency of the temporary orders. The court finds the children want and need to spend more time with [Wife].
C. The military duties of [Husband] often make him unavailable during his parenting time resulting in the children spending too much time with the paternal grandparents relative to time they could be with [Wife].
D. The children are girls who naturally will gravitate more to [Wife] as they mature.
E. The experience during the temporary orders has been unreasonable occasionally. . . . The court finds [Husband] has been comparatively more unreasonable and inflexible than [Wife] [in agreeing to trade parenting time]. In particular, [Husband] has placed his interest over the best interest of the children in not allowing more frequent weekend parenting time by [Wife] regardless of the strict terms of the stipulated temporary order.
F. It is unlikely the parties will both reside in Yuma during the minority of all the children. Significant geographical separation of the parties precludes equal parenting time. Changing equal parenting time now would be less disruptive than in the future.
G. Children should have a primary home and bedroom where special items like collections, posters and private things are maintained as opposed to forcing children to equally divide their time and things and clothes equally between two homes.
H. A primary residence promotes stability and continuity for children.
The Court of Appeals examined the trial court’s ruling and walked through several concerns about the trial judge’s decision. In fact, the Court of Appeals said it agreed with almost every one of Husband’s concerns:
- The trial court made a legal error by presuming against equal parenting time. Equal parenting time is the “starting point” of A.R.S. §25-403.02. One point the court of appeals made was that a child in divorce is expected to have two homes and two sets of belongings.
- The trial court’s second error was presuming that the girls would gravitate toward Wife.
- In 2012, the legislature removed one factor from the best interest factors of A.R.S. §25-403. The fact that Wife provided primary care for the children was no longer one of the factors in 2018.
- It isn’t logical to limit a military parent’s time with his children because he may be deployed in the future.
- “Both parents’ jobs will require extended periods of child care,” so it was acceptable for Husband and Wife to rely on child care providers during their parenting time. Husband’s extended periods of unavailability were no basis to deny him time when Wife had similar unavailability and Husband’s parents were willing to give the kids their time and care.
- Wife acknowledged she had been unavailable basically every weekend, so of course her kids missed spending weekend time with her. She acknowledged this was the reason the kids wanted more time with her. This was no reason to so severely limit Father’s parenting time. There was little evidence to support that the kids had not fully adjusted.
- However, because Husband did strictly follow the parenting time orders, there was a basis to find he had been inflexible.
If you are reading this and you’re involved in a custody dispute, please remember that parenting time is so fact specific. The “starting point” is equal parenting time, but that means the starting point is the foundational point from which each family leaps into post-divorce transitions. The Court’s primary consideration in awarding legal decision-making authority and parenting time is a child’s best interests. Hays v. Gama, 205 Ariz. 99, 102.
Some situations are just not eligible for equal parenting time. One such situation is divorce that takes place in the life of a teenager. Teenagers are notoriously opinionated about their preferences, and if the teen has tension or discomfort with a parent, well, it’s not like you can just put the kid in a car seat and tell them to behave for the weekend. We have handled several cases – win and lose – with teens who simply refused to follow the court’s orders. Typically, in those cases, one parent’s influence dominates. For some kids, they have a parent who alienates them from the parent seeking more time. For other kids, the parent seeking more time has alienated them. Life choices, life changes and the personalities involved govern the outcome.
If you are facing a child custody determination, and your child is almost a teenager, for some people this is their last true chance to maintain a relationship with this child. Intervention is sometimes necessary. To save money, time and stress, if you are safe with the other parent, consider collaborative process. This out-of-court, informal and customized process is for a lot of people. We estimate that about 85% of people are eligible for this process. Serious personality disorders and agendas aren’t appropriate.
If you want to talk to a lawyer, we offer a $97 consultation. We have tremendous experience in collaborative law and in court. Call us at 480-999-0800.
