One of the largest concerns for parents in a divorce is legal decision making (formerly known as child custody) and how the family court will decide it. While there are many judges in Maricopa County who seem to lean one way or the other, the gender of the parent is a non-factor in the statutes regarding legal decision making (custody). Many people also think that income or wealth is a factor, but it is not a factor.

Arizona family law courts decide legal decision making based on Arizona Revised Statute § 25-403, which requires the family court to make its decision based on the best interests of the child and consider all relevant factors, including the following:

1. The past, present and potential future relationship between the parent and the child.

2. 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.

3. The child's adjustment to home, school and community.

4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8. Whether there has been domestic violence or child abuse.

9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

10. Whether a parent has taken the parent information program class.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect.

Arizona family courts do not consider the following factors:

Whether each party was a good spouse or significant other. Many people think that if they can prove that the other party is a bad person or was a terrible spouse, they will "win" the custody battle. However, the family court will only consider things that pertain to the children’s best interest. Telling the family court that the other party committed adultery, or looked at pornography, or is lazy will often give the impression that you are seeking to use the children to punish the other party for issues between you and him or her that have little to do with the children.

Gender. Many people think that the mother gets the children. However, courts do not use gender as a factor in the decision. The family court considers more important factors such as each parent’s relationship with the child and each parent’s availability to provide for the child’s care.

Income. People often ask something like, "How could the court giver her (or him) the kids? She (or he) can’t provide for the kids." However, that is why Arizona has child support. Income is a non-factor in the decision making process. The family court expects parents to provide food, clothing, and shelter. A parent’s ability to provide more impressive food, clothing, and shelter, or additional items, is not relevant to the family court’s decision.

The following items are also important:

1. Arizona family law courts can award sole legal decision making, which means that the parent with sole legal decision making makes the children’s major decisions for them, such as decisions regarding health, education, and welfare. Joint legal decision making means that the parents make the decisions together. Joint legal decision making far more common than sole legal decision making.

2. The older and more mature the child, the more weight his or her preference will have on the court’s decision.

3. Making unsubstantiated or false allegations against the other party, such as abuse, neglect, alcohol abuse, or illegal drug use, will often backfire. Credibility matters, and making serious allegations with nothing to substantiate them will damage a parent’s credibility.

4. The more reasonable party often gets what he or she wants.

5. The best outcome of a legal decision making (custody) case is a settlement. There are two people who know the children better than anyone else and who are most qualified to make a decision that is in the children’s best interest: their mom and dad. If the children’s parents cannot focus on the children’s best interest instead of focusing on other things, then a stranger who happens to be a judge will listen to about three hours of evidence and will make a decision. The judge will do his or her best to make a decision in the best interests of the children, but the judge does not know the parents or children and is not in the unique position of the parents. Therefore, the best outcome is when both parents focus on their children, not on themselves or the other parent, and make an agreement.

6. The court’s order is a guideline and a backup plan. Whether the family court’s order is the result of a judge’s decision or the parents’ agreement, the parents can deviate from it any time they want to do so, as long as they BOTH agree to do so. If the parents cannot agree, they must stick to the order. Ideally, the parents will be flexible and will work with one another for the children’s best interests. For example, Dad has the children this weekend. Mom wants to take the children on an annual extended family camping trip with her. If they go, the children will see extended family that they love and do not see very often. Dad should allow Mom to take the children. In return, Mom should be flexible in the future and perhaps allow Dad to have the children on her next scheduled weekend with them.

If you are in a legal decision making (custody) case and need to speak with an attorney, Thomas A. Morton is available for you. Thomas A. Morton is a divorce and custody attorney serving Phoenix, Glendale, Peoria, and every other city in Maricopa County.