The Anatomy of a Divorce,
Child Custody, Access
For parents in divorce, it pays
to have a
well-structured plan for
child access issues as an alternative to an enduring
legal nightmare that benefits no one
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The Anatomy of a Divorce, Part 1:
The Anatomy of a Divorce, Part 2:
The Anatomy of a Divorce, Part 3:
The Anatomy of a Divorce, Part 5:
The Anatomy of a Divorce, Part 6:
The Anatomy of a Divorce, Part 7:
Awards of Attorney's Fees
More Articles on Divorce-Related
One of the five fundamental issues in many divorce actions
deals with child custody (officially termed "decision-making authority") and a parenting plan for access. Not surprisingly, this
is very often the most contentious issue in a divorce proceeding, and it is
common for a divorcing parent to expect the court to step in and protect his or
her children from the “monster” that the ex-spouse has become.
Such expectations place the court, the children and the
parents in a very difficult position. Without the parents’ cooperation, the
court is left to craft a custody and parenting plan order that, while aiming to
achieve a healthy balance among the parents and children, rarely best serves the
interests of the parents or their children.
Instead of trying to micro-manage the parties’ daily lives,
the courts often enlist professional “parenting coordinators” to assist the
parties in managing the myriad areas of conflict in this regard. While that
option can be beneficial, it costs money, and the parties certainly benefit
financially if they can reach agreements without outside intervention.
With respect to “who gets the kids,” joint legal custody is
the norm in Arizona. This does not mean joint physical custody (i.e.,
essentially equal sharing of time with the children); rather, it is the
objective of joint custody to give both parties substantial involvement with
their children, and for children to have substantial contact with both parents.
Thus, the issue that foments the friction between divorcing
and divorced parents is generally not legal custody, per se; it is the
access plan. It is here that the devil is in the details, particularly for
It would take several articles to address the many
potential issues attendant to obtaining a child access schedule, whether by
agreement or court determination. In essence, the courts tend to favor an access
schedule that addresses the child’s best interest and maximizes the time the
child can spend with each parent.
(As an aside, in my opinion a major consideration by both
parties in a typical access plan is its impact on child support. I am convinced
that many parenting plan battles would be avoided if the courts could eliminate,
or at least limit, the connection between a parent’s time spent with the child
and the parent’s share of the child support obligation. This factor often gives
both parents a financial incentive for trying to maximize their respective time
with their child.)
In some cases, the parties are so eager to get divorced
(e.g., they may have imminent remarriage arrangements) that they sign off on a
skimpy parenting plan with the rationalization that they can work together on
the details later. In my experience, such a strategy results in the parties
spending the ensuing years battling – to the kids’ detriment – over details that
would have been more effectively resolved during the divorce proceeding.
Another “strategy” is for one parent to give up some
parenting time in exchange for a “discount” in child support. This plan rarely
works. Notwithstanding that agreement, within a couple of years, the other
parent will invariably find some basis to file for a child support modification
based on Arizona’s
Child Support Guidelines.
Some parties will try to exploit the court’s emphasis on
the child’s best interests by arguing that the other party’s lifestyle,
priorities or temperament does not favor extended time with the child. One
increasingly popular way to support such arguments is to produce social media
postings and emails. You can fully expect the derogatory, scathing emails you
sent, or the Internet pictures of you drinking and cavorting in compromising
positions, to become exhibits in a parenting time battle.
Creating an Access Plan
When the parties are unable or unwilling to agree on an
access plan and bequeath that obligation to the court, the court will likely
require a “custody study,” which can cost the parties thousands of dollars.
A relatively inexpensive alternative to a custody study is
conducting a parenting conference through the court. Even if the parties cannot
reach agreement at the conference, the parenting coordinator sends a
recommendation to the court regarding a parenting plan.
In a parenting conference, you can introduce evidentiary
factors for consideration that would not be admissible in a formal court
hearing. Another reason that a parenting conference can be a desirable
alternative to a formal hearing is the court’s caseload. The courts’ dockets are
so packed that your custody trial would likely be limited to three hours, your
extensive witness list will probably be narrowed to three per side (including
the parties), and, as noted above, the number of exhibits you would like to
offer as evidence will be trimmed as well.
This overview only scratches the surface of the child
access quagmire often attendant to divorce. Add to that the fact that child
custody and access plans are always modifiable, sometimes leading to several
post-decree returns to court. You can see that it pays (both financially and
emotionally) to have a well-structured plan for child access issues as an
alternative to an enduring legal nightmare that benefits no one.