Arizona Child Custody Agreement

Introduction

Key Things to Know

1. 1

   The children's terms are the part of your deal the court is not bound by. A.R.S. 25-317(B) makes the terms of a written separation agreement binding on the court except those providing for the support, legal decision-making and parenting time of children. The asymmetry is worth noticing: property and maintenance terms bind the court unless it finds the agreement unfair, while the children's terms bind nothing until the court affirmatively finds them reasonable under 25-317(D). Once found reasonable they are set out or incorporated in the decree and the parties are ordered to perform them, and 25-317(E) then makes them enforceable by all remedies available for enforcement of a judgment, including contempt.

2. 2

   One clause escapes the carve-out, and it is relocation. A.R.S. 25-408(H) provides that the court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless the court finds the provision is no longer in the child's best interests, and that there is a rebuttable presumption that such a provision is in the child's best interests. That is the strongest thing an Arizona agreement can lock in, and 25-403.02(C)(5) already requires the plan to contain a relocation procedure. Note the freshness trap: 25-408(D) switches off the 45 day notice duty only where the relocation provision sits in a court order or written agreement dated within one year of the proposed move, so a clause in a five year old decree does not excuse notice.

3. 3

   Using custody and visitation language is not just old-fashioned in Arizona, it is inaccurate. A.R.S. 25-401 substitutes legal decision-making for legal custody and parenting time for physical custody and visitation, and 25-401(7) defines visitation as a schedule of time that occurs with a child by someone other than a legal parent. An agreement that gives an Arizona parent visitation is using a term the statute reserves for non-parents. The old label survives only as a translation rule: the second sentence of 25-401(3) says that for the purposes of interpreting or applying an international treaty, federal law, a uniform code, or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.

4. 4

   Agreeing still changes real things in Arizona, just not the binding effect. A.R.S. 25-403.02(A) requires each parent to submit a proposed parenting plan only if the parents cannot agree, so agreement turns two competing plans into one. A.R.S. 25-403(B) requires the court to make specific findings on the record about all relevant factors and the reasons the decision is in the child's best interests only in a contested legal decision-making or parenting time case, so agreement switches that findings duty off. And 25-403.01(B) makes the agreement or lack of an agreement by the parents regarding joint legal decision-making an express factor, together with whether a parent's lack of an agreement is unreasonable or is influenced by an issue not related to the child's best interests.

5. 5

   Arizona prescribes what a parenting plan must contain, and the list is long. A.R.S. 25-403.02(C) requires plans to include at least a designation of legal decision-making as joint or sole; a description of each parent's rights and responsibilities for the child's personal care and for decisions in areas such as education, health care, and religious training; a practical parenting time schedule including holidays and school vacations; an exchange procedure covering location and transportation, specifying when the exchange must take place at a safe exchange location under 25-403.10; a procedure for mediating or resolving proposed changes, relocation under 25-408, disputes, and alleged breaches; a procedure for periodic review of the plan by the parents; a communication procedure including methods and frequency; and a statement that each party has read, understands, and will abide by the notification requirements of 25-403.05(B). Because the section says at least, treat those eight as a floor.

6. 6

   Deadlock on one clause does not sink the plan. A.R.S. 25-403.02(D) provides that if the parents are unable to agree on any element to be included in a parenting plan, the court shall determine that element, and that the court may determine other factors necessary to promote and protect the child's emotional and physical health. Read 25-403.02(B) carefully as well: it directs the court to adopt a parenting plan that provides for both parents to share legal decision-making and that maximizes their respective parenting time, but it is expressly made consistent with the child's best interests under 25-403 and the related sections, and 25-403.02(E) adds that shared legal decision-making does not necessarily mean equal parenting time. It is a policy direction rather than a presumption of equal time.

7. 7

   Domestic violence produces limits that agreement cannot switch off. A.R.S. 25-403.03(A) provides that joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence under A.R.S. 13-3601, or finds by a preponderance of the evidence that there has been a significant history of domestic violence, and no rebuttal route is offered for that bar. Section 25-403.03(D) separately creates a rebuttable presumption against an award of sole or joint legal decision-making to a parent who has committed an act of domestic violence, and 25-403.03(B) requires the court to consider evidence of domestic violence as contrary to the child's best interests. Arizona also built a check on the agreement itself into its general list: 25-403(A)(9) makes the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time a best interests factor. Separate restrictions in 25-403.04 and 25-403.05 apply to drug and alcohol conduct and to specified convictions and registrations. If any of this is in your situation, talk to a lawyer rather than work from a form.

Arizona Requirements for Child Custody Agreement

• Children's terms carved out by A.R.S. 25-317(B)

  The terms of a written separation agreement are binding on the court except those providing for the support, legal decision-making and parenting time of children. The parenting bargain is reviewed independently rather than accepted as written.

• Reasonableness finding under A.R.S. 25-317(D)

  The children's terms are set forth or incorporated by reference in the decree, and the parties ordered to perform them, only if the court finds them reasonable. Property and maintenance terms are tested instead for whether the agreement is unfair, so the two halves of a settlement are reviewed on different standards.

• Enforcement and continued modification under A.R.S. 25-317(E) and (F)

  Terms set forth or incorporated in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt. Entry of the decree precludes later modification of the property settlement but expressly does not preclude modification of terms concerning the support, legal decision-making, or parenting time of children.

• Legal decision-making, parenting time, and visitation under A.R.S. 25-401

  Legal decision-making is the legal right and responsibility to make all nonemergency legal decisions for a child, including education, health care, religious training, and personal care. Parenting time is the schedule of time with each parent. Visitation under 25-401(7) means time with a child by someone other than a legal parent, so do not use it for a parent.

• Required parenting plan contents under A.R.S. 25-403.02(C)

  Plans shall include at least the designation of legal decision-making, each parent's rights and responsibilities by subject, a practical parenting time schedule with holidays and school vacations, an exchange procedure including safe exchange locations under 25-403.10, a procedure for changes, relocation, disputes, and alleged breaches, a periodic review procedure, a communication procedure, and the 25-403.05(B) notification statement.

• Court determines unresolved elements under A.R.S. 25-403.02(D)

  If the parents are unable to agree on any element to be included in a parenting plan, the court shall determine that element, and may determine other factors necessary to promote and protect the child's emotional and physical health. Anything left open is written by the court.

• Agreed relocation provision under A.R.S. 25-408(H)

  The court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless it finds the provision is no longer in the child's best interests, and there is a rebuttable presumption that such a provision is in the child's best interests. State clearly whether relocation is allowed or prohibited and on what terms.

• Relocation notice and burden under A.R.S. 25-408(A) to (G)

  Written notice must be given 45 days in advance before relocating a child out of state or more than 100 miles within Arizona, where both parents hold joint legal decision-making or parenting time and both reside in the state. The other parent has 30 days to petition, and the burden of proving what is in the child's best interests is on the parent seeking to relocate. The notice duty is excused only by an order or written agreement dated within one year of the proposed move.

• Best interests factors and findings under A.R.S. 25-403(A) and (B)

  The court shall consider all factors relevant to the child's physical and emotional well-being, including eleven listed ones, so the list is open. Factor (9) is the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time. The duty to make specific findings on the record about all relevant factors applies only in a contested case.

• Domestic violence limits under A.R.S. 25-403.03

  Joint legal decision-making shall not be awarded on a finding of significant domestic violence under A.R.S. 13-3601 or a finding by a preponderance of the evidence of a significant history of domestic violence. A separate rebuttable presumption under 25-403.03(D) applies against sole or joint legal decision-making for a parent who has committed an act of domestic violence, and 25-403.03(F) conditions that parent's parenting time.