Presumption of Equal Parenting Time in Arizona

Is There a Presumption of Equal Parenting Time in Arizona?

Parents sometimes ask if there is a presumption of equal parenting time in Arizona. No, there is not a presumption of equal parenting time in Arizona; although that does not mean a judge will not order equal parenting time.

The Arizona Court of Appeals in the case of Gonzales-Gunter vs. Gunter ruled that there is not a presumption of equal parenting time.

In the Gunter case, the father argued the trial court was required to award equal parenting time with the children absent a finding he was an unfit parent or a danger to his children.

The mother and father had an equal parenting time plan when the mother filed a request to modify father’s parenting time. An expert was appointed to conduct an investigation and provide recommendations to the court. That expert completed the evaluation and, after a trial, the court changed the equal parenting time arrangement to the father having parenting time on the first and third weekends of every month.

The Arizona Court of Appeals rejected the father’s argument that Arizona Revised Statute Section 25-403.02(B) requires a judge to order equal parenting time absent a showing of parental unfitness or endangerment. In doing so, the Arizona Court of Appeals did recognize a prior decision in the case of Woyton vs. Ward where the court held that “as a general rule equal or near-equal parenting time is presumed to be in a child’s best interests.” However, the Court of Appeals ruled the trial court has discretion to determine parenting time based upon all the evidence presented by the parents.

The Gunter court also rejected the father’s argument that Arizona Revised Statute Section 25-411(J), which provides that a court shall not restrict a parent’s parenting-time rights unless if finds that parenting time would seriously endanger the child, prevented the court from reducing his parenting time absent proof he was a danger to his children. Father argued the court could not reduce his parenting time unless the wife proved the equal parenting time arrangement they had been exercising was seriously endangering their children.

The Arizona Court of Appeals held that parenting time can be changed any time it is in the best interests to do so. The reference to restricting parenting time under Arizona Revised Statute Section 25-411(J) applied to restrictions on how parenting time is exercised, such as supervised parenting time, and does not apply to establishing or modifying a child custody or parenting time order.

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Equal Parenting Time in Arizona From a Psychological Perspective

Renowned psychologist, Dr. Philip Stahl, spoke at the 2015 American Bar Association Spring Family Law Conference on the subject of whether a presumption of equal parenting time makes sense. The title of the program was “Revisiting Shared Parental Access – Is a Presumption of Equal Parenting Time the Appropriate Template for Custody Determination?”.

Dr. Stahl began by pointing out that family law attorneys and judges have historically focused on the best interests of the children. He characterized the move in some states to a presumption of shared parenting time as a change in a focus from the best interests of the children to, instead, a focus on parental rights. He urged caution in making such a large shift in focus when these decisions have “an impact on children for years and years.”

Dr. Stahl indicated the transition to a presumption of equal parenting time in some states was designed, in part, to benefit children by potentially decreasing parental conflict. The idea is that parents are less likely to have a contentious relationship if they share equal parenting time.

However, there is no psychological research supporting the supposition that shared parenting time reduces conflict between contentious parents. As usual in such situations, it depends on the people involved. Dr. Stahl’s experience has led him to conclude that shared parenting time does not automatically diminish parental conflict, and for some families, it will exacerbate it.

Dr. Stahl pointed out that not all parents are similarly competent to provide for a child’s physical, emotional, or other needs. Most parents have various strengths and weaknesses and the key to understanding what parenting plan will be in their children’s best interests is to understand how each parent’s parenting style matches their children’s needs.

Parenting style is defined as “authoritative, i.e., simultaneously nurturing, guiding, and emotionally responsive with parental warmth; “authoritarian”, i.e., harsh and rigid with little awareness of or responsiveness to a child’s unique developmental needs; or “permissive”, which tends to be overly indulgent and only responding to a child’s feelings and needs, but not providing structure or encouraging age-appropriate maturity demands. Authoritative parenting has been found to be the type that is healthiest for children.

Dr. Stahl then turned his focus to point out all children are different. For example, some children may be very adaptable to change while other children may not. Children that do not cope well with change may not adjust well to a shared parenting schedule. Some children have special needs which require special parenting skills. While many parents advocate together on behalf of a child’s special needs, some families have parents who do not agree on those needs and some parents are ill-equipped to advocate for their child. Regarding children under the age of three, Although some young children can tolerate and thrive on an equal parenting schedule, there can be many factors, either internal or external to the child, that will make an equal parenting schedule problematic.

He emphasized that defaulting to a presumption of shared parenting time oversimplifies the complex task of determining what parenting time arrangements are in the best interests of a child. He indicated such an oversimplification risks children being placed in an arrangement that may cause harm to them. Instead, our focus should be on creating frequent and continuing contact with “the right schedule” that works well for the children.

Although many parents want a 50-50 plan for their child, Dr. Stahl indicated that research shows that an optimal plan might be one that ranges from ~ 35% of the time with one parent to 50% of the time with both parents as long as the parenting schedule is “well distributed,”. This will include having each parent spending time with the child in a wide range of the child’s life consistent with healthy parenting strengths. Dr. Stahl pointed out that we need to focus on the differences in parenting styles and the needs of a child before deciding on a parenting plan. He warns that a presumption of shared parenting time ignores these important dynamics.

Equal Parenting Time Must be in the Child’s Best Interest

Presumption of Equal Parenting Time in Arizona.

Dr. Stahl discussed certain specific situations wherein shared parenting time would not be in a child’s best interest, including the following:

When there has been a history of domestic violence
When one spouse has exerted Coercive Control Violence over the other parent
When there is high conflict between the parents that is driven by personality disturbances
When it is logistically not feasible, such as when the parents live far from each other
When one of the parents has been assessed as having poor parenting skills
When a parent has substantial mental health issues
When a parent has significant substance abuse problems
When one parent has shown a pattern of Restrictive Gatekeeping

Lastly, Dr. Stahl pointed out that the term “parental alienation” is no longer being used in the psychological community, whose name has been replaced with the label “Restrictive Gatekeeper.” Alienation optimally refers to a child who is who refuses/resists contact with a parent, whereas Gatekeeping refers to parental behavior that might encourage such refusal/resistance. This will be discussed in another blog.

I would like to hear any comments you have regarding Dr. Stahl’s position on these issues and how they may affect children and their relationship with their parents.

References:

Planning for Parenting Time: Arizona Guide for Parents Living Apart

Stahl, PM, Parenting After Divorce, 2^nd Edition. New Harbinger Publications

If you have questions about presumption of equal parenting time in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have decades of combined experience successfully representing clients in child custody and family law cases.

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