The Equality of Parenting Time

  1. Family Law
  2. The Equality of Parenting Time
Family Law

As one family law judge put it, in family court, parties often think that there will be a clear winner and loser; the judge will pick one person’s side completely. But that is almost never the case. When there are children involved, the judge is always required to look to the best interests of the child, even if neither parent likes it. Usually, it is in the child’s best interests if the parents can come to an agreement that works, that both will follow, even if they cannot be particularly cordial about it.

The judge has discretion to make the best decision for both sides when they cannot agree. One thing many people do not realize is that following a divorce, parents often end up back in court in proceedings to modify legal decision-making authority and parenting time (Arizona’s version of legal custody and physical custody/visitation), and may end up with a less favorable outcome. This was exactly the case in Gonzales-Gunter v. Gunter, a recent Arizona Court of Appeals, Division One case. The parents had two daughters and had initially agreed to equal parenting time and joint legal decision-making.

However, the father filed a motion alleging the mother hadn’t reimbursed him for certain items required under the divorce decree, while the mother countered that any funds she hadn’t paid him should be offset since he had promised to pay for both girls to have gymnastics lessons, but so far hadn’t paid. The mother also asked the Court to modify the original divorce decree to make her the “primary residential parent” due to the father’s alleged drug use and emotional abuse. While the trial court did not find the father “unfit,” meaning that he had abused any drugs or had emotionally abused either of his daughters, it nevertheless agreed that the mother should be the primary residential parent. The father’s parenting time was reduced from 50-50 to 72 days per year.

The father appealed, alleging that A.R.S. §§ 25– 403.02, 25–103(B)(1), and 25–411(J), required a trial court to award equal physical parenting time absent a finding of “unfitness” on the part of a parent.

However, the Court of Appeals agreed with the trial court, and found that a family court judge has the discretion to award unequal physical parenting time if the judge determines it to be in the child’s best interests. The Court of Appeals took a textual approach to interpreting the three statutes that the father had alleged guaranteed him the right to have 50-50 custody of his daughters and determined that none of them required such a result.

This decision supports the idea that the family law judge has great discretion to evaluate the individual circumstances of each case, and make the hard decision on what he or she truly thinks is the best for the child or children.

If you have a question about your legal decision-making or parenting time arrangement, need to modify a parenting plan, or just want some advice on the best way to protect your rights as a parent, the attorneys at Provident Law are well-versed in all aspects of family law, and will be happy to “share your burden” and help you navigate the difficulties of family court.

Anne Courchaine is an associate attorney with Provident Law, where she specializes in real estate, commercial litigation and family law. She can be reached at or 480-388-3343.

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