Wednesday, December 29, 2004

Who Gets Custody in Arizona - Mothers or Fathers?

Answer: This is a very controversial family law topic in Arizona and other states but I will share based on my experiences in the family courts and my academic learnings. First, let's define what we mean when we say custody. Most people when they talk about receiving custody really mean the party who the court designates as the primary physical custodian in a family law case, in other words, the parent/person with whom the child or children reside most of the time. Thus, the non-custodial parent in a family law case would be the one who exercises visitation (now commonly called parental access or parenting time) with the children.

Second, as a matter of background, there were at least a couple of national family law studies done some years ago that indicate fathers who contest child custody actually were successful more than half the time, meaning that fathers who fight for custody received the primary physical custodian designation more than 50% of the time. The reasons for this could vary, of course. One explanation could simply be that the fathers who fight for child custody actually have a good reason for doing so, in other words a very clear-cut issue that lends itself to proof in family court. Examples of such things might include illegal drug use, incarceration for a criminal offense or provable abuse. Another explanation could be that the fathers in the studies who fought for child custody have evidence that they were the primary care-givers for the children and thus can argue for continuing the status quo.

An important distinction with the studies is that they addressed only the cases involving fathers who fight for custody, not all cases. Thus, impliedly, it appears that many men do not fight for custody. Again, there could be several factors influencing fathers not to contest custody, including the presence on their part of the factors in the above paragraph and, I believe, an additional one: That many fathers do not argue custody because they are under the impression that the mother almost always wins and, therefore, believe contesting the matter is a waste of time, money, emotions and effort.

Having written the above as background, it appears that the Arizona Superior Courts' family law divisions are changing in two ways. First, the family court appears to be moving toward 50/50 time with the children as a matter of policy. In other words, where two parents appear basically equal, the court is inclined to treat them equally when making custody and access decisions. (There is even a present movement in the Arizona Legislature to make equal time the starting point for all child custody decisions, meaning that a judge would have to justify any variance from equal time in a family law case.) Second, as older family division judges retire and new judges are appointed, the decision-makers tend to have a more egalitarian view of custody and raising children; i.e., the present judges were not brought up to believe that females stay at home with the children and men contributed primarily by earning money to pay the bills. Now, it is important to note, I think, that the courts still consider the status quo or history of each particular family in determining the primary physical custodian. For example, if one parent has dedicated his/her time to the children and the other parent has been uninvolved, the family court will often preserve that status and determine a non-equal parenting schedule. Likewise, it is worth noting that family court judges are individuals with their own perspectives on child-rearing, child custody and related issues that result from from their own experiences and personal beliefs -that's why two different family court judges hearing the same case can come to completely opposite conclusions.

In summary, it appears to me that the most judges in the Arizona Superior Courts these days are giving both parents a fair shake when it comes to child custody. But updated and local child custody studies are needed to benefit both the public and the court system.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

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information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

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