With all the news coverage of Arizona’s new immigration law, much less attention has been paid to other new laws coming out of the recently ended legislative session. One such law, SB 1314, may affect custody decisions regarding minor children in contested divorces and other child custody proceedings.
The new law, which was signed by Governor Brewer on May 3, 2010, amends three sections of Title 25 (Marital and Domestic Relations). Most notably, although it stops short of creating a legal presumption in favor of joint custody, it does express a strong preference for it. The new law also allows courts to sanction parties in custody cases, and adjusts the rules that govern moving a child.
The Child’s Best Interest
The first provision expressly states that, absent evidence to the contrary, it is in the child’s best interest “to have substantial, frequent, meaningful and continuing parenting time with both parents” and “to have both parents participate in decision-making about the child.” The new law then calls on courts to apply the family law provisions of Title 25 accordingly.
The provision as passed by the legislature and signed by the governor does not create a presumption in favor of either joint legal custody or joint physical custody (although an earlier version that the legislature considered-but rejected-did create such a presumption). Nevertheless, the language in the new law does track closely with the definitions of joint legal custody and joint physical custody (references to “parenting time” correspond to physical custody and “decision making” to legal custody), so judges will certainly be aware that the legislature intended to demonstrate that it favors joint custody.
Currently, judges use a list of factors outlined in section 25-403 to help determine what is in the best interests of the child when custody is contested. It may be a few months before we know exactly how the judiciary will implement the new law, but it is likely that those same factors will still be considered, but the judge will begin from the presumption that parenting time and decision-making with both parents is in the child’s best interest, and then consider the factors that may require the court to deviate from that preference.
The new law makes no change to protections that were already in place to prevent joint or sole custody with an unfit parent – instances such as significant domestic violence, recent drug offenses, or if the parent is a registered sex offender or is convicted of first-degree murder of the other parent.
A second provision of the new law concerns sanctions in custody cases, in the form of awarding attorney’s fees to the other party. The new law directs the judge to award attorneys’ fees to the other party if one party filed a petition in the custody hearing for an improper purpose, such as to harass the other party, create delay, or increase litigation costs. Attorney’s fees would also be awarded for filings that were not grounded in fact or based on …