How big are the changes coming to Arizona’s child custody statutes?  After January 1, 2013, Arizona won’t have a child “custody” statute.  That’s right.  The word “custody” is being removed entirely from the Arizona statutes governing decision-making and residential placement of children in family court cases.  In the statutes, the words “legal decision-making” will replace the words “custody” and “legal custody.”  See Senate Bill 1127 (2012).  The changes affect many of our current statutes, including A.R.S. Sections 25-401 through 415 and A.R.S. Section 25-803.

While this may seem like a monumental change in the law, it’s really just an exercise in semantics.  Family law attorneys already know that in the current custody statutes, “legal custody” refers to decision-making authority.   Laypersons, however, often confuse legal custody (decision-making authority) with physical custody (where the children reside), which is already officially called “parenting time” in the current statutes.  The new statutory wording draws a clear distinction between these two aspects of child custody cases.

By entirely disposing of the word “custody”, I believe the new statutes will help pro se litigants and laypersons to clearly understand the difference between decision-making authority over children and residential placement of children.  Frankly, the change will also force many family law attorneys and family court judges to be more disciplined in drafting parenting plans and court orders than they have previously been.

Under the new statutes, the strong presumption in favor of joint legal custody–now to be called “joint legal decision-making”–will remain firmly intact, as will a strong presumption in favor of the children’s spending significant time with both parents.  I believe that, except in extreme cases involving substance abuse, significant domestic violence, or serious mental health issues on the part of one parent, equal decision-making authority and equal parenting time will soon be the norm.

Already, many family court judges begin their child custody analyses from the position that the parents will have equal decision-making authority and equal time with the children unless one parent comes forward with substantial evidence showing that equal decision-making and equal time would not be in the children’s best interests.  The days of mothers having presumptive sole decision-making authority and primary residential custody with fathers having only alternating weekend visits are long gone.

In my view, the most significant changes made by S.B. 1127  are to the statutes governing actions for child custody and visitation by third parties who claim rights to the children of others based on their blood relationship to the children (i.e., grandparents and great-grandparents) or based on their having formed a parent-like relationship with the children (usually stepparents or relatives who have taken in the children of absentee parents).  The old A.R.S. Sec. 25-415 (in loco parentis rights) and A.R.S. Sec. 25-409 (grandparent visitation) have been combined into a new Section 25-409, titled “Third party rights.”

Under the new 25-409, the analysis of in loco parentis legal decision-making and child placement claims remains essentially the same as that for in loco parentis custody claims under the old 25-415.  As for third-party visitation claims, however, the new 25-409 is significantly different from the old grandparent visitation statute (old 25-409) and the old in loco parentis visitation statute (old 25-415C).   I will address only two of the several changes to the third-party visitation statutes.

First, the new 25-409, subsection E, will require the court to “give special weight to the legal parents’ opinion of what

[visitation] serves their child’s best interests.”   This language  is intended to “help avoid visitation orders ‘based solely on the judge’s determination of the child’s best interests’ or on the judge’s ‘mere disagreement’ with a fit parent’s choice.”  McGovern v. McGovern, 201 Ariz. 172, 33 P.3d 506, 512 (Ariz. App. 2001), citing Troxel v. Granville, 530 U.S. 57, 67-68, 120 S.Ct. 2054, 2061 (2000), see also Egan v. Fridlund-Horne, 221 Ariz., 229, 211 P.3d 1213, 1225 (Ariz. App. 2009) (“The court is not free . . . to simply second-guess the decision of a fit parent as to visitation rights.”).

Second, in the most stunning and perhaps unintended change from the old law, the new A.R.S. Section 25-409(C) removes the requirement of an in loco parentis relationship previously required for a third party other than a grandparent or great-grandparent to seek visitation rights with a child.  Now, under the new statute as written, an aunt, uncle, cousin, or virtually any other person may bring a claim for visitation rights with someone else’s child, whether or not the person has an in loco parentis relationship with the child.

Note that I did NOT say that these additional third parties would actually be granted visitation rights.  In most cases, I believe they would not.   But under the new law, third parties without an in loco parentis relationship will have legal standing to bring visitation claims and to be granted hearings on those claims.  The potential for an explosion of litigation over third-party visitation claims created by the new 25-409(C) is simply mind-boggling.

It is my opinion that this enormous expansion of the class of persons with standing to bring third-party visitation claims under the new 25-409(C) was not intended by the legislature and is the result of a drafting error.  I have two reasons for this belief.  First, the new 25-409(C)(4) still contains a reference to “in loco parentis visitation”, which tells me that the statute’s drafters believe there should remain a requirement of an in loco parentis relationship for a third-party other than a grandparent or great-grandparent to bring a claim for visitation.  Second, the trend in third-party visitation cases, as evidenced by recent caselaw (cited above) and the “special weight” language included in the new 25-409(E), is to contract third-party rights and to give more deference to fit parents to decide who should have visitation with their children.  Based on these observations, I predict that next year the legislature will correct the error in the new 25-409(C) and restore the requirement of an in loco parentis relationship for a third party other than a grandparent or great-grandparent to seek visitation rights with a child.

The law governing child custody (soon to be “legal decision-making”), parenting time and third-party rights continues to evolve.  As the new statutes begin to be applied by judges in 2013, I will of course write about the court decisions and trends I am seeing in this important area of the law.

Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.