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The Anatomy of a Divorce,
Part 4: 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

John McKindles

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Mesa Arizona Divorce Attorney John McKindlesOne 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 fractious parties.

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.)

Bad Strategies

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.

Conclusion

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.