By Ashby Jones | The Wall Street Journal
Some of the biggest battles over child custody are playing out not in courtrooms, but in statehouses.
Prompted partly by fathers concerned that men for too long have gotten short shrift in custody decisions, about 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation.
The proposals generally encourage judges to adopt custody schedules that maximize time for each parent. Some of the measures, such as those proposed in New York and Washington state, take an additional step by requiring judges to award equal time to each parent unless there is proof that such an arrangement wouldn’t be in a child’s best interests.
Rose Law Group Partner Kaine Fisher comments:
Arizona has long since followed the best interest model for evaluating parenting time issues. Thankfully, the legislature in this state has not yet mandated a presumption for any particular parenting time schedule.
I think this is wise as each case should be evaluated on a case-by-case basis without injecting into the analysis the requirement that a parent overcome certain burdens in order to obtain ruling that’s best for their children. That said, although it’s not the black letter law, there has been a trend here in Arizona where equal parenting time is the starting point from which most judges tend to begin their analysis.
This is likely due to the fact the Legislature has spoken and recently amended its parenting time statutes declaring as public policy that absent evidence to the contrary it is in child’s best interest to have “substantial, frequent, meaningful and continuing” parenting time with both parents. A.R.S. 25-103(B).
I think such a public policy statement is fine so long as it’s not taken to the next level. Judges, not the Legislature, are in the best position to evaluate what’s best for children. Taking that next step would only serve to create impediments for judges who do not appreciate being saddled with pre-imposed standards.
