A Note on Terms.
Some people use the term “legal custody”. However, Arizona courts generally do
not use this terminology anymore, but instead use the term “legal
decision-making”. The same thing with “visitation”, the courts generally use
the term “parenting time” and "visitation" means something altogether different.
Legal Custody = Legal Decision-Making
Visitation = Parenting Time
And One More Note. Please
don’t take this as legal advice or opinion. I am not an attorney, nor do I work
for an attorney. This is my personal take on and understanding of these issues. If you need to discuss the specifics of your case please seek
the advice of an experienced family law attorney.
So what exactly is
legal decision-making? Legal decision-making is simply who has input and
power over the major decisions that affect the child. These are things such as
whether the child gets braces or where the child goes to school. Legal
decision-making has nothing to do with who physically has the child or how much
time each parent spends with the child.
There are two ways that legal decision-making can be
ordered:
Joint Legal
Decision-Making – this simply means that both parents share in the
decision-making in regards to the child, and neither parent has greater
authority than the other. What this boils down to is that both parents must
agree on all major decisions. If they can’t it probably means another trip to
court to resolve the issue. An example:
Mother wants the child to get braces, but father disagrees.
The parents share joint legal decision-making, so in this situation the mother
cannot just go ahead and get the child braces without father’s permission.
Sole Legal
Decision-Making – this simply means that the parent with sole legal
decision-making can make major decisions regarding the child even without the
other parent’s agreement. To continue our example above:
Mother wants the child to get braces, but father disagrees.
Mother has sole legal decision-making, so in this situation the mother can go
ahead and get the child braces even though the father objects.
And what exactly is
parenting time? Parenting time is pretty much how it sounds. It is the
schedule that determines which parent has the child and when.
Tied in with parenting time is the concept of who is the
“primary residential parent”. The primary residential parent is simply the
parent who the child spends the majority of the time with.
Broadly speaking, there are three ways that parenting time
can be ordered:
Mother as the primary
residential parent, with father having some form of parenting time – The
child’s mother has the child 51% of the time or more, and the child’s father
has some form of parenting time schedule outlining what time he has
with the child. An example:
“Mother is named as the child’s primary residential parent
subject to father’s parenting time as follows: Father will have parenting time
with the child on alternating weekends from 7 p.m. Friday evening until 7 p.m.
the following Sunday evening. Mother will have the child in her care at all
other times.”
Father as the primary
residential parent, with mother having some form of parenting time – The
child’s father has the child 51% of the time or more, and the child’s mother
has some form of parenting time/visitation schedule outlining what time she has
with the child. An example:
“Father is named as the child’s primary residential parent
subject to mother’s parenting time as follows: Mother will have parenting time
with the child on alternating weekends from 7 p.m. Friday evening until 7 p.m.
the following Sunday evening. Father will have the child in his care at all
other times.”
Equal physical
custody, with neither parent named as the primary residential parent – The
child’s parents each have the child exactly 50% of the time, and neither parent
has the child more than the other. There will be some form of parenting
time/visitation schedule outlining which parent has the child during which
times. An example:
“Parents will share equal physical custody of the child,
with neither parent acting as the primary residential parent. In the absence of
other agreement, parents shall share parenting time in alternating one week
blocks (i.e. mother will have the child for one week, and then father shall
have the child the next week; this pattern will then continue). Pick up and
drop off of the child shall occur on Friday nights at 7 p.m.”
So where does that
leave us? Just as legal decision-making has nothing to do with parenting
time, parenting time has nothing to do with decision-making. They are separate,
but they are both part of a court’s custody order. Given the above, we are left
with the following possible types of custody order:
Joint Legal
Decision-Making with Mother named as the Primary Residential Parent – the
parents have to agree on all major decisions related to their child. The child
will be spending more than half the time with mother, and father will have some
form of parenting time/visitation.
Joint Legal
Decision-Making with Father named as the Primary Residential Parent - the
parents have to agree on all major decisions related to their child. The child
will be spending more than half the time with father, and mother will have some
form of parenting time/visitation.
Joint Legal
Decision-Making with parents sharing Equal Physical Custody - the parents
have to agree on all major decisions related to their child. The child will be
spending an equal amount of time between the parents’ homes, and there will be
some form of parenting time schedule outlining who has the child and when.
Sole Legal Decision
Making to the Mother with Mother named as the Primary Residential Parent – mother
has final say on all major decisions related to their child (typically after
reasonable consultation with father). The child will be spending more than half
the time with mother, and father will have some form of parenting
time/visitation.
Sole Legal Decision
Making to the Mother with Father named as the Primary Residential Parent - mother
has final say on all major decisions related to their child (typically after
reasonable consultation with father). The child will be spending more than half
the time with father, and mother will have some form of parenting
time/visitation. I have never seen this arrangement in the ten years I have
been doing custody cases and doubt I ever will.
Sole Legal Decision
Making to the Mother with parents sharing Equal Physical Custody - mother has
final say on all major decisions related to their child (typically after
reasonable consultation with father). The child will be spending an equal
amount of time between the parents’ homes, and there will be some form of
parenting time schedule outlining who has the child and when.
Sole Legal Decision
Making to the Father with Mother named as the Primary Residential Parent -
father has final say on all major decisions related to their child (typically
after reasonable consultation with mother). The child will be spending more
than half the time with mother, and father will have some form of parenting
time/visitation. I have never seen this arrangement in the ten years I have
been doing custody cases and doubt I ever will.
Sole Legal Decision
Making to the Father with Father named as the Primary Residential Parent -
father has final say on all major decisions related to their child (typically
after reasonable consultation with mother). The child will be spending more
than half the time with father, and mother will have some form of parenting
time/visitation.
Sole Legal Decision
Making to the Father with parents sharing Equal Physical Custody - father has
final say on all major decisions related to their child (typically after
reasonable consultation with mother). The child will be spending an equal
amount of time between the parents’ homes, and there will be some form of
parenting time schedule outlining who has the child and when.
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