The Arizona Court of Appeals holds that equal or near-equal parenting time is presumed to be in a child’s best interests
In 2010, the Arizona legislature amended Title 25 of the Arizona Revised Statutes to include a provision that stated as follows:
It also is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest:
1. To have substantial, frequent, meaningful and continuing parenting time with both parents.
2. To have both parents participate in decision-making about the child.
A.R.S. § 25-103(B).
At the time, it did not appear that the public was aware of this amendment and the impact it could have on the quest for joint versus sole legal decision-making authority (formerly, legal custody).
In 2012, the Arizona legislature amended A.R.S. §25-403.02 and added language stating, “the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. The court shall not prefer a parent’s proposed plan because of the parent’s or child’s gender.” A.R.S. §25-403.02(B).
This amendment was largely publicized as a “presumption” towards equal parenting time. First, please understand that the word “presumption” has a legal meaning. Black’s Law Dictionary defines a “presumption of law” as “the assumption that is created by a law that exists and forces the court to make a certain conclusion.” My definition would be that a legal presumption creates a starting point for the trial court, such that the burden of proof shifts to the party arguing something other than the presumption. In this context, it would mean that the trial court has to start at a belief that equal parenting time is in the best interests of the children until one party proves why it is not.
There were a number of attorneys who argued that this amendment did create a legal presumption towards equal parenting time. However, there was probably an equal number of attorneys who argued that this amendment did not create a legal presumption, and that “maximizing” a parent’s parenting time depended on a number of factors, the most important factor being the children’s best interests, and that it did not require equal parenting time.
In 2018-2019, the case of Barron v. Barron made its way through the Arizona Court of Appeals and to the Arizona Supreme Court. The facts in Barron are somewhat unique. The original trial court made some broad generalizations in its ruling, including that children should have one primary residence following a divorce. In response, the Arizona Court of Appeal, Division 1, held that the court cannot apply a presumption against equal parenting time. Barron v. Barron, 443 P.3d 977 (Ariz. Ct. App. 2018).
Those attorneys who previously argued that there was a presumption towards equal parenting time argued that Barron affirmed their beliefs. Those that argued against a presumption of equal parenting time argued that Barron made no change to the law, because it still left open the option that the courts should not have any presumptions.
On October 24, 2019, the Arizona Court of Appeals, Division 1, filed their decision in Woyton v. Ward. The Woyton case primarily addresses A.R.S. §25-408, and how that statute applies when a party wants to move out of state as part of the original dissolution. However, the appellate court stated in Paragraph 6: “As a general rule equal or near-equal parenting time is presumed to be in a child’s best interests… Equal parenting time, however, may not always be possible, particularly when the parties live in different states or are separated by a considerable distance.” Woyton v. Ward, No. 1 CA-CV 18-0677FC (10/24/2019).
This case is still new, but it could have a striking impact on the way we litigate parenting time issues. It will be interesting to see if this case is appealed, if the Arizona Supreme Court addresses this point, and whether cases with similar issues are appealed. But for now, it appears that there may be a presumption in favor of equal parenting time.