Who can get legal decision-making?
At least one of the child's parents is entitled to legal decision-making, unless there is clear and compelling (convincing) evidence that awarding legal decision-making to a legal parent is not consistent with the child's best interests.
* A.R.S. § 25-409(B)
Can I file for legal decision-making of a child if I am not the parent?
Four conditions must be met for a non-parent to apply for legal decision-making rights or placement of the child:
1) The person who is filing must stand "in loco parentis" to the child.* To be "in loco parentis," a person must have:
- been treated as a parent by the child; and
- formed a meaningful parental relationship with the child for a substantial period of time;**
2) The petitioner must prove that it is detrimental (harmful) to the child to remain in the custody of either legal parent who wishes to keep or acquire (get) legal decision-making;
3) No court has entered or approved an order concerning legal decision-making or parenting time within the previous one year before the petitioner files (unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health); and
4) One of the following situations applies:
- One of the parents is dead;
- The parents are not married to one another at the time of filing; or
- The parents are involved in a separate legal proceeding regarding divorce or legal separation.*
Even though it may be difficult to get legal decision-making over a child if you are a child's relative (other than a parent), you may be able to get visitation if you are a grandparent, great-grandparent, or another (non-parent) third party. See Can a grandparent (or other non-parent third party) get visitation? for more information.
* A.R.S. § 25-409(A)
** A.R.S. § 25-401(1)
Can a grandparent (or other non-parent third party) get visitation?
In certain situations, a person other than a legal parent may petition the superior court for visitation with a child. The judge may grant visitation if the judge believes that visitation is in the best interests of the child and any one of the following are true:
- One of the legal parents is dead or has been missing for at least three months (and reported as missing to a law enforcement agency);
- The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed;
- For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months; or
- For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.*
In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents' opinion of what serves their child's best interests and consider all relevant factors including:
- The historical relationship, if any, between the child and the person seeking visitation;
- The motivation of the person seeking visitation;
- The motivation of the person denying visitation;
- The amount of visitation time requested and the possible negative impact that visitation will have on the child's usual activities; and
- The benefit in maintaining an extended family relationship (if one or both of the child's parents are dead).**
* A.R.S. § 25-409(C)
** A.R.S. § 25-409(E)
Can a parent who committed violence get legal decision-making or parenting time?
Possibly. While the judge will strongly consider the safety and well-being of the child and of the victim of the act of domestic violence,* it is possible that a parent who has committed violence will get legal decision-making or parenting time.
If the parent who committed an act of domestic violence against the other parent is trying to get (joint or sole) legal decision-making, the judge will assume that awarding legal decision-making to that parent is not in the best interest of the child.*1 However, the abusive parent can try to present evidence to change the judge’s mind. When making his/her decision, the judge will consider whether the abusive parent:
- has shown that being granted legal decision-making or substantially equal parenting time is in the child’s best interests;
- has successfully completed a batterer’s prevention program;
- has successfully completed a program for alcohol or drug abuse prevention (if required by the court);
- has successfully completed a parenting class (if required by the court);
- has a protective order against him/her if that parent is on probation, parole or community supervision; and
- has committed any further acts of domestic violence.*2
The court will not grant joint legal decision-making if it finds that significant domestic violence has occurred or if there is a significant history of domestic violence.*3
If the parent who committed an act of domestic violence is seeking parenting time, that parent has to prove to the judge that parenting time will not endanger the child or significantly harm the child's emotional development. The judge may place conditions on parenting time that best protects the child and the other parent from further harm.*4
Courts generally presume that it is in the child's best interest to see both parents regularly, so they favor providing both parents with some form of legal decision-making and parenting time. Courts will only deny parenting time when there is substantial (important) evidence that parenting time would be harmful to your child.
The judge has to consider the impact of domestic violence on your child when deciding if there should be parenting time. If a judge is unsure about whether parenting time could be harmful to your child, s/he may establish specific parenting time rules that s/he thinks are in the best interest of your child. The judge can:
- order that an exchange of your child must occur in a protected setting;
- order that a specific agency must supervise parenting time. If the judge allows a family or household member to supervise parenting time, the judge should make conditions that this person must follow during parenting time;
- order the abusive parent to attend and complete appropriate counseling programs;
- order the abusive parent to not drink alcohol, take drugs, or have them is his/her possession during parenting time and for twenty-four hours before the beginning of his/her parenting time;
- order the abusive parent to pay a fee to the court to help with the costs of supervised parenting time;
- not allow overnight parenting time with the abusive parent;
- order the abusive parent to place a bond (put money with the court) for the child’s safe return;
- order that the court keep the address of you and your child confidential; and/or
- order any other rules that the judge feels are necessary to protect you, your child, and any other family or household member.*4
* A.R.S. § 25-403.03(B)
*1 A.R.S. § 25-403.03(D)
*2 A.R.S. § 25-403.03(E)
*3 A.R.S. § 25-403.03(A)
*4 A.R.S. § 25-403.03(F)
Can a parent who abuses drugs or alcohol get legal decision-making?
Possibly. However, if the judge determines that a parent has abused drugs or alcohol or has been convicted of certain drug offenses within the past twelve months before the petition for legal decision-making or parenting time is filed, the judge will assume that it is not in the child's best interests for that parent to get sole or joint legal decision-making. However, the parent who is accused of abusing drugs or alcohol can try to present evidence to change the judge's mind. In that case, the judge must at least consider the following evidence:
- the absence of any conviction of any other drug offense during the previous five years (aside from the one s/he may have been convicted of within the year before filing the petition);
- results of random drug testing for a six-month period, which indicate that the person is not using drugs; and
- results of alcohol or drug screening provided by a facility approved by the department of health services.**
* A.R.S. § 25-403.04(A)
** A.R.S. § 25-403.04(B)
Can a parent who is a registered sex offender or who murdered the other parent get legal decision-making or parenting time?
Possibly but it depends on the circumstances. If the parent is a registered sex offender or if the parent murdered the other parent, the judge can only grant sole or joint legal decision-making of a child or unsupervised parenting time if the judge find that there is no significant risk to the child.
In the case of a parent who was convicted of murdering the other parent, the judge can consider whether the convicted parent was a victim of domestic violence at the hands of the murdered parent, for example .
In addition to the judge considering a case where a parent is a sex offender, the judge will also consider a situation where a parent involves himself/herself with a registered sex offender. A child's parent or custodian must immediately notify the other parent or custodian if s/he knows that a convicted or registered sex offender (or a person who has been convicted of a dangerous crime against children as defined on our AZ Statutes page, section 13-705) may have access to the child. The parent or custodian must provide notice by first class mail, return receipt requested, by electronic means to an electronic mail address that the recipient provided to the parent or custodian for notification purposes or by other communication accepted by the court.*
* A.R.S. § 25-403.05
If my child was conceived from rape, can the offender get legal decision-making or parenting time?
It depends. The law says that if the offender was convicted of the crime of sexual assault and that sexual assault led to your child being conceived, the convicted person has no rights to legal decision-making or parenting time.* However, if the offender was not criminally convicted of this specific crime of sexual assault, he may still be able to get rights to your child.
* A.R.S. § 25-416