When going through a divorce or separation, it is not uncommon for one or both parents to have questions about sole custody. Parents want what is best for their children; and, in some cases, this may mean making sure that an unfit parent isn’t able to cause any harm.
Sole custody is an option in Arizona. However, Arizona law favors allowing divorced or separated parents to share parenting responsibilities whenever possible, and it places restrictions on when sole custody may be awarded. If you are interested in seeking sole custody, or if you think your spouse or partner might seek sole custody in your divorce or separation, here is an introduction to what you need to know:
What Does it Mean to Have Sole Custody?
First, it is important to understand that there are two different types of child custody in Arizona legal custody and physical custody. Legal custody affords a parent the right to make important decisions on behalf of his or her children. Physical custody is what comes to mind when most people think about child custody—the right to provide your children with a loving and caring home.
In Arizona, it is possible for a parent to have sole legal custody, sole physical custody, or both. Generally speaking, however, if a parent has sole legal custody, he or she will have sole physical custody as well. Sole physical custody with joint legal custody is an option, though there must be justification for denying a parent the right to spend time with his or her children while still allowing that parent to participate in decisions about things like education, health care, and religious upbringing.
Most often, when a parent wants sole custody, that parent wants sole legal custody and sole physical custody (this is also commonly referred to as “full custody”). As discussed below, obtaining full custody requires proof that the children’s other parent is unfit to spend unsupervised time with the couple’s children and to participate in important child-related decisions.
How Can a Parent Obtain Sole Custody in Arizona?
Under Arizona law, all custody-related decisions are governed by the “best interests” standard. This means that all child custody arrangements must reflect the best interests of the children involved.
Thus, in order to obtain sole custody, one parent must be able to demonstrate that it is not in their children’s best interests to spend time with their other parent. This requires evidence that the other parent is unfit.
There is no single definition of what it means to be unfit to parent under Arizona law. Instead, the courts take all relevant considerations into account in order to make a decision. The parent seeking sole custody must present his or her evidence to the court, and then the other parent will have the opportunity to make a case for why joint custody is in the best interests of their children.
With that said, there are a number of factors that will often (though not always) weigh in favor of sole custody. These factors include:
- Alcohol or Drug Abuse – If one parent cases abuse alcohol or drugs and this abuse has a negative impact on his or her ability to parent, this could work in favor of the other parent securing sole custody. However, drug-dependent parents also have the opportunity to seek help and get clean during the divorce or separation process. This won’t necessarily result in an award of equal custody, but it may be enough to prevent a determination that the parent is unfit.
- Child Abuse – A history of child abuse is understandably among the strongest factors weighing in favor of a sole custody award. If your children’s other parent has been abusive in the past, you will certainly want to speak with an attorney about whether sole custody is an option in your divorce or separation.
- Domestic Violence – A history of domestic violence is a factor that can weigh in favor of a sole custody award as well. This includes all forms of physical, verbal, and emotional abuse perpetrated against the children’s other parent or other members of the family’s household.
- Criminal Record and/or Incarceration – Having a criminal record or being incarcerated is not an automatic bar to securing child custody rights, but it can be a factor in divorce or separation proceedings. If your spouse or partner has a criminal past, or if you are concerned that your spouse or partner might try to use your criminal past against you, you will want to discuss your options with an experienced Phoenix child custody attorney.
- Mental Health Problems – Mental health problems can, unfortunately, negatively impact a parent’s ability to act with his or her children’s best interests in mind. If you struggle with mental illness, or if your spouse or partner struggles with mental illness, this is a factor that you will want to discuss with an experienced Phoenix and Tempe child support lawyer as well.
While parents can, and often will, reach an agreement regarding child custody during their divorce or separation, this is rarely the case when one parent wants sole custody. Additionally, even when one parent is willing to give up his or her custody rights, the parents must still be able to convince the court that this is in their children’s best interests.
In order to demonstrate that their desired custody rights reflect their children’s best interests, both parents will need experienced legal representation. An experienced divorce attorney will be able to assess the circumstances at hand, gather relevant evidence, provide advice regarding sole custody and potential alternatives, and provide representation in court as necessary.
Speak with a Phoenix Child Custody Lawyer in Confidence
If you are preparing for a divorce or separation and have questions about sole custody, we encourage you to contact us for a free initial consultation. One of our experienced Phoenix child custody lawyers will be happy to speak with you one-on-one. To schedule an appointment at your convenience, please call 480-542-0099 or tell us how we can reach you online today.