For a long-time, it wasn’t just a stereotype of family life that mothers take care of children and fathers are disengaged, breadwinners. This was a premise enshrined in law: Historically, in child custody decisions, mothers were assumed to be the default primary caregivers, and fathers were responsible for providing financial support and not much else.
Of course, times have changed, and father’s rights in Arizona have changed, with many fathers wanting to be much more involved in their children’s lives.
You can share child custody with your exes. But dads who want to be engaged parents should understand their parental rights and obligations before a custody hearing. They should go into a custody proceeding with a well-developed parenting plan covering everything—from who should be the parent who makes the major decisions to the child’s vacation schedule.
The attorneys at Stewart Law Group are experienced in family law and especially dedicated to helping fathers in custody matters. For questions about your case, call them at any time. But in the meantime, let’s explain why this well-thought parenting plan is so important for fathers who want to share custody of their children.
Fathers and Mothers Are the Same Under Arizona Law
When it comes to parental rights in a divorce, as of January 2013, mothers and fathers are now equal under Arizona law.
Under Arizona’s Revised Statute Section 403.02(B), mothers are no longer considered the preferred parent after divorce. Instead, courts cannot consider a parent’s gender when deciding custody. Furthermore, the law also applies to the child’s gender—that can’t be a deciding factor for custody decisions, either. (So a girl should not be more likely to be placed with her mother, simply because they’re both females.)
Instead of defaulting to gender, the court must consider what is in the best interest of the child.
While this should come as a relief to fathers—that the system isn’t set up against them—it also should be a wake-up call.
Fathers will need to demonstrate current knowledge of their children’s needs and concerns to get shared custody. Their parenting plans should be thoughtful and have specifics on how they will remain engaged in their children’s lives.
Arizona Law Relates to “Legal Decision-Making,” Not “Custody”
The first thing for fathers to know is that when judges or lawyers talk about “legal decision-making,” that’s now the legal equivalent of child custody issues. Arizona law has stopped using the terms “custody” and “primary caregiver,” but this change in terminology often confuses parents about when to discuss arrangements for the children.
“Legal decision-making” refers to a parent’s ability to make major decisions relating to children’s wellbeing—such as where children will go to school, what religion they will practice, and when they can receive medical care. There are two options:
- “Joint legal decision-making,” when both parents have the equal ability to make significant decisions for the children, or
- “Sole legal decision-making,” when only one parent can make these decisions for the children
The Impact of Legal Decision-Making
Additionally, even if one of you is awarded sole decision-making authority, you both would still be free to share your opinions about what’s best for your children. You can collaborate with your ex on decisions as much as you wish. It’s just that if there’s a time you cannot agree on an issue, then the parent with sole decision-making ability gets to make the final decision.
Legal decision-making only relates to major decisions, but a parent without that authority can still make routine decisions about their child’s day-to-day care. During their time with the child, even if one parent has sole decision-making ability, the other can still decide if his daughter should do her homework before or after eating dinner. And if the child were to trip and skin her knee, they can bandage her leg without calling the ex.
And one thing a sole decision-maker cannot do on their own: They cannot unilaterally change a court-approved parenting plan.
Another crucial factor for fathers to realize is that the court’s award of decision-making authority can be issue-specific. (It’s possible that, for example, one parent is given decision-making responsibility for the child’s religious upbringing, but both parents could make decisions about the child’s schooling.)
Therefore, as a father, when deciding if you want to share decision-making with your ex, or seek sole decision-making authority, don’t approach this from an “all-or-nothing” position. Instead, consider each issue on its own.
Ask yourself questions such as:
- Is there any reason a judge might see you or your ex as less likely to act in the best interests of your child?
- Are there issues where you or your ex-spouse have more knowledge or expertise, that could sway a judge?
- Are there any factors that suggest one of you is less suitable for making decisions on this topic?
Arizona Law Relates to “Parenting Time,” Not “Custody” or “Visitation”
Just as Arizona retired the term “custody,” the state also got rid of terms like “visitation.” Instead, the law now addresses “parenting time,” which refers to when one parent is scheduled to have access to the children. During their scheduled parenting time, a parent is expected to provide the children’s food, clothing, and shelter.
Also, awards for decision-making and parenting time are not automatically the same. If parents have joint legal decision-making, that doesn’t mean they will have an equal 50-50 split for parenting time. Or parents could divide parenting time equally, but one parent could still have sole decision-making authority over one or more issues.
For Unmarried Fathers
This post was written to address the needs of fathers who were married and sought shared custody during a divorce proceeding. Unmarried fathers should be aware that the process to establish parental rights and custody is similar but you should seek out an attorney for consultation and advice.
Fred Ruotolo is a divorce and family law attorney in Scottsdale, Arizona. Mr. Ruotolo is a partner with Stewart Law Group. The firm has helped many clients navigate the legal complexities of divorce, child custody, child support, spousal support, property division, and child relocation disputes.
