Custody Rights During Separation

Single father holding a pre-toddler child in a small family room; parenting time and custody rights during separation concept.

Custody Rights During Separation

Separation and divorce are frequently complicated, especially when children are involved. For parents who decide to get a divorce, some of the first questions are typically about how child custody is handled during the process before the divorce is finalized. If you and your spouse have recently separated, you may be wondering how custody rights during separation are legally handled. There are several ways these rights can be decided, and the option that fits your situation will depend on your family’s circumstances. At Sullivan Law Office, our Arizona family law attorneys provide legal guidance on various family law matters, including custody rights during separation. Give us a call at (480) 719-2558 today to schedule a consultation to discuss your case.

Who Has Custody of Children During the Divorce Process?

Like most other states, Arizona follows the Uniform Child Custody Act (UCCA), which is a uniform law that standardizes custody concerns among various states to avoid interstate custody conflicts. States that follow this law give parents the option of joint custody. When a couple with children decides to separate and file for divorce, Arizona family law courts assume that both parents will share parenting time and decision making responsibilities, unless certain circumstances dictate that one parent should not have custody rights.

One parent may petition the court for sole custody if they can show a valid reason why joint custody is not in the best interests of the child. Courts may approve such requests if there is evidence of child abuse, substance abuse, domestic violence, severe mental health problems, or criminal history that could pose a danger to any children involved. However, it is not always necessary for courts to get involved.

What Are the Two Types of Custody in Arizona?

Parents have various options for deciding custody agreements while a divorce is pending. Arizona state law recognizes two types of child custody in Arizona: legal custody and physical custody. A parent with legal custody has the authority to make important decisions for the child, including their education, healthcare, religious affiliation, and other decisions regarding their upbringing. Physical custody refers instead to the practice of having the child in residence as part of the household.

In joint legal custody agreements, each parent has an equal right to make major decisions on the child’s behalf, while in a sole legal custody arrangement, one parent would have these rights exclusively. Physical custody can also be either joint or physical, and in most cases courts will attempt to order an arrangement that allows both parents to share in parenting time.

Can Parents Make Their Own Custody Agreements?

Although child custody disputes are frequently settled in court as part of the legal proceedings for dissolution of marriage, parents also have the option to develop their own custody agreement if both sides can agree on the terms. The only legal requirement is that the agreement addresses several key components and that all of its terms are in the best interests of the child. 

Under Arizona law, a parenting plan must include a parenting time schedule, along with provisions for each of the categories outlined below. If you have questions about creating your own parenting plan or another aspect of child custody rights during separation, you may be able to learn more by speaking with an Arizona family law attorney at Sullivan Law Office.

Authority on Legal Decisions

The agreement should specify whether the parents will share joint legal custody (or joint legal decision-making authority), or if one parent will have the sole authority to make legal decisions on the child’s behalf. If these responsibilities are shared, the agreement should include a specific process for deciding major issues in the event that the parents disagree.

Healthcare Decisions

Custody agreements should decide if both parents share the right to make emergency decisions regarding the child’s medical and dental care. For children with special needs, the agreement should include additional provisions relevant to their care, such as how insurance costs will be split between the parents.

Education Decisions

A child custody agreement should outline how decisions regarding the child’s education will be made. The agreement should address both school and extracurricular activities. Like the other provisions, educational decisions can either be designated as an area for joint decision-making or the sole provenance of one parent. Specific considerations for how parents will handle parent-teacher conferences and who will be responsible for scheduling transportation to extracurriculars –– as well as how a child’s extracurricular activities will be selected and supported –– should also be included in this part of the agreement.

Religious Affiliation

In Arizona, parenting plans must cover the religious upbringing of the child. In cases where the family does not adhere to any specific religion, this should be clearly stated in the plan. If religious practices are a part of family life, the plan should outline whether both parents have the freedom to take the children to places of worship or if there is an agreement on educating them in a specific faith. Additionally, considerations for children’s autonomy in choosing their own religion may also be specified as part of the plan.

Is Mediation an Option For Child Custody During Separation?

Many couples approaching divorce turn to mediation to help streamline the process and mitigate unnecessary time, expense, and conflict. Mediation can also help couples to avoid protracted court battles when deciding custody rights during separation. In this type of alternate dispute resolution, a neutral mediator works with the spouses to help them reach a mutually acceptable arrangement regarding parenting time, legal custody, physical custody, and other custody matters. Mediation can be conducted either through a private or court-appointed mediator. Spouses should be aware, however, that any custody agreement they reach through mediation will need to be presented to and accepted by the court, which will make its determination based on the best interests of the child standard that prevails in all custody matters.

How Do Courts Make Child Custody Rights Arrangements?

In Arizona, joint custody is the standard during separation, unless one parent requests sole custody of the children. When such a request is made, the court will evaluate the circumstances, and after weighing the evidence presented will issue a temporary order regarding custody rights, including whether to award sole or joint legal and physical custody. 

Temporary orders will typically cover all of the usual areas of concern covered by permanent court-ordered parenting plans, such as parenting time and decisions on healthcare, medical care, religious affiliation, and education. For temporary orders as well as the permanent custody orders issued as part of the final divorce decree, the judge will make all decisions based on what is deemed to be “in the best interests of the child”, as outlined in § 25.403 Ariz. Rev. Stat.

Discuss Your Case With Our Arizona Family Law Attorneys

Are you wondering how custody rights will be handled in the period between filing a petition for the dissolution of marriage and finalizing your Arizona divorce? The Arizona family law team at Sullivan Law Office helps our clients with these and other divorce-related matters. Contact us today at (480) 719-2558 to learn more about child custody rights during separation in Arizona.