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)).
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.Challenging a Custody Decision: A Court of Appeals Examination
Challenging a Custody Decision: A Court of Appeals Examination
The Court of Appeals scrutinized the trial court’s decision, expressing agreement with almost all of the 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. The Court of Appeals highlighted that, in divorce, it’s expected for a child 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,” Both Husband and Wife using childcare is acceptable. Husband’s occasional unavailability isn’t a valid reason to deny him time, especially when Wife faces similar challenges, and Husband’s parents are available to care for the kids.
- Wife admitted being unavailable every weekend, causing her kids to miss her. Although the kids wanted more time, it wasn’t a valid reason to restrict Father’s parenting time severely. There was scant evidence that the kids hadn’t fully adjusted.
- However, because Husband did strictly follow the parenting time orders, there was a basis to find he had been inflexible.
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