------------------------------------------------------- ¦ REFERENCE TITLE: domestic relations; parenting plans ¦ ------------------------------------------------------- ¦ ¦ ¦ ¦ ¦ ¦ ¦ State of Arizona ¦ ¦ House of Representatives ¦ ¦ Forty-fifth Legislature ¦ ¦ First Regular Session ¦ ¦ 2001 ¦ ------------------------------------------------------- ¦ HB 2402 ¦ ------------------------------------------------------- ¦ Introduced by ¦ ¦ Representatives Anderson: Cooley, Gray, Hatch-Miller ¦ -------------------------------------------------------
AN ACT
AMENDING SECTION 25-351, ARIZONA REVISED STATUTES; REPEALING SECTION 25-403, ARIZONA REVISED STATUTES; AMENDING TITLE 25, CHAPTER 4, ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING A NEW SECTION 25-403; RELATING TO PARENTING PLANS.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section¦1.¦¦Section 25-351, Arizona Revised Statutes, is amended to read:
25-351.¦¦Domestic relations education; plan; administration
A. On or before January 1, 1997, The superior court in each county shall adopt
and implement an educational program for the purpose of educating persons about the
impacts that divorce, the restructuring of families and judicial involvement have on
children AND ABOUT THE DEVELOPMENT OF PARENTING PLANS PURSUANT TO SECTION 25-403.
B. The supreme court shall adopt minimum standards for educational programs. The presiding judge of the superior court in each county shall submit an educational program plan to the supreme court for approval. The plan shall be consistent with the minimum standards that are adopted by the supreme court, including the length and nature of the program, the qualifications of program providers and the means by which the program will be evaluated and maintained.
C. The presiding judge of the superior court or a judge who is designated by the presiding judge shall administer the program in each county and may provide or contract with political subdivisions in this state or private entities to provide the program to participants who are required to attend.
Sec.¦2.¦¦Repeal
Section 25-403, Arizona Revised Statutes, is repealed.
Sec.¦3.¦¦Title 25, chapter 4, article 1, Arizona Revised Statutes, is amended by adding a new section 25-403, to read:
25-403.¦¦Parenting plans
A. FOR EACH ORIGINAL OR MODIFICATION PROCEEDING BROUGHT PURSUANT TO THIS ARTICLE, THE COURT SHALL ADOPT A PARENTING PLAN THAT IS IN THE CHILD'S BEST INTERESTS.
B. A PARENTING PLAN SHALL INCLUDE AT LEAST THE FOLLOWING:
1. EACH PARENT'S RESPONSIBILITIES FOR THE PERSONAL CARE OF THE CHILD AND FOR DECISION MAKING IN AREAS SUCH AS EDUCATION, HEALTH CARE AND RELIGIOUS TRAINING.
2. A SCHEDULE OF THE PHYSICAL RESIDENCE OF THE CHILD, INCLUDING HOLIDAYS AND SCHOOL VACATIONS.
3. PROVISION FOR COMMUNICATION BETWEEN THE CHILD AND A PARENT WHEN THE CHILD IS RESIDING WITH THE OTHER PARENT.
4. A PROCEDURE BY WHICH PROPOSED CHANGES, DISPUTES AND ALLEGED BREACHES MAY BE RESOLVED INCLUDING THE USE OF CONCILIATION SERVICES, PRIVATE COUNSELING, FAMILY COURT ADVISERS OR SPECIAL MASTERS.
5. A PROCEDURE FOR PERIODIC REVIEW OF THE PLAN'S TERMS BY THE PARENTS.
C. IN PROPOSING A PARENTING PLAN FOR THE COURT'S APPROVAL, THE PARENTS SHALL JOINTLY SUBMIT A PARENTING PLAN IF THEY AGREE ON ALL OF ITS PROVISIONS. IF THE PARENTS ARE UNABLE TO AGREE ON A PROVISION, THEY SHALL JOINTLY SUBMIT A PLAN THAT CONTAINS THE AGREED ON PROVISIONS AND EACH PARENT SHALL SUBMIT A SEPARATE PROPOSAL FOR THE CONTESTED PROVISIONS OF THE PLAN.
D. THE COURT SHALL APPROVE A JOINTLY PROPOSED PARENTING PLAN. IF ONLY ONE PARENT SUBMITS A PARENTING PLAN THE COURT SHALL ACCEPT THAT PLAN UNLESS IT FINDS THAT THE PLAN IS NOT IN THE CHILD'S BEST INTERESTS, ENTERS ITS SPECIFIC FINDINGS ON THE RECORD AND STATES THE REASONS FOR ITS DECISION. THE COURT MAY REQUIRE THE PARENTS TO RESUBMIT A JOINTLY AGREED ON PLAN, OR THE COURT MAY MODIFY THOSE PROVISIONS THAT IT DETERMINES ARE NOT IN THE CHILD'S BEST INTERESTS.
E. IN CHOOSING BETWEEN COMPETING PROVISIONS SUBMITTED PURSUANT TO SUBSECTION C OF THIS SECTION, THE COURT SHALL CHOOSE PROVISIONS THAT IT DETERMINES ARE IN THE CHILD'S BEST INTERESTS. THE COURT SHALL NOT BASE ITS DECISION ON A PARENT'S GENDER. THE COURT SHALL CONSIDER ALL OTHER RELEVANT FACTORS INCLUDING:
1. THE CHILD'S WISHES.
2. THE INTERACTION AND INTERRELATIONSHIP OF THE CHILD WITH THE CHILD'S PARENT OR PARENTS, THE CHILD'S SIBLINGS AND ANY OTHER PERSON WHO MAY SIGNIFICANTLY AFFECT THE CHILD'S BEST INTERESTS.
3. THE CHILD'S ADJUSTMENT TO HOME, SCHOOL AND COMMUNITY.
4. THE MENTAL AND PHYSICAL HEALTH OF ALL PERSONS INVOLVED.
5. WHICH PARENT IS MORE LIKELY TO ENCOURAGE THE CHILD'S FREQUENT, MEANINGFUL AND CONTINUING CONTACT WITH THE OTHER PARENT.
6. WHICH PARENT IS MORE LIKELY TO INTERFERE WITH OR DISCOURAGE THE CHILD'S CONTACT WITH THE OTHER PARENT.
7. WHICH PARENT IS MORE LIKELY TO PROMOTE AN ACCOMMODATING RELATIONSHIP WITH THE OTHER PARENT TO PROTECT THE CHILD FROM THE HARMFUL EFFECTS OF PARENTAL CONFLICT.
8. WHICH PARENT IS MORE LIKELY TO REFRAIN FROM MAKING DEROGATORY STATEMENTS ABOUT THE OTHER PARENT TO THE CHILD.
9. THE EXTENT TO WHICH EACH PARENT HAS PROVIDED PRIMARY CARE OF THE CHILD AND THE WILLINGNESS AND ABILITY OF EACH PARENT TO CARE FOR THE CHILD AND TO PROVIDE FOR THE CHILD'S FUTURE NEEDS.
10. WHETHER A PARENT HAS COMPLIED WITH CHAPTER 3, ARTICLE 5 OF THIS TITLE.
F. IN CHOOSING BETWEEN COMPETING PROVISIONS IN A PARENTING PLAN THERE IS A REBUTTABLE PRESUMPTION THAT IT IS IN THE CHILD'S BEST INTERESTS:
1. IF NEITHER PARENT IS PROVIDED WITH LESS THAN ONE-THIRD OF THE CHILD'S RESIDENTIAL TIME.
2. IF THE PARENTS SHARE IN MAKING MAJOR DECISIONS ON BEHALF OF THE CHILD IN AREAS SUCH AS EDUCATION, HEALTH CARE AND RELIGIOUS TRAINING.
3. THAT EACH PARENT SHALL SOLELY MAKE DECISIONS REGARDING THE DAY-TO-DAY CARE AND CONTROL OF THE CHILD WHILE THE CHILD IS RESIDING WITH THAT PARENT.
G. THE COURT SHALL CONSIDER EVIDENCE OF DOMESTIC VIOLENCE AS CONTRARY TO THE CHILD'S BEST INTERESTS. IF THE COURT FINDS THAT SIGNIFICANT DOMESTIC VIOLENCE HAS OCCURRED, IT SHALL INCLUDE IN THE PARENTING PLAN PROVISIONS THAT BEST PROTECT THE CHILD AND THE ABUSED PERSON FROM FURTHER HARM. THE PERSON WHO HAS ENGAGED IN DOMESTIC VIOLENCE HAS THE BURDEN OF PROVING THAT CONTINUED CONTACT WITH THE CHILD WILL NOT ENDANGER OR IMPAIR THE CHILD OR THE ABUSED PERSON. IN DETERMINING THE EXISTENCE OF DOMESTIC VIOLENCE, THE COURT SHALL CONSIDER, SUBJECT TO THE RULES OF EVIDENCE, ALL RELEVANT FACTORS, INCLUDING:
1. FINDINGS FROM ANOTHER COURT OF COMPETENT JURISDICTION.
2. POLICE REPORTS.
3. MEDICAL REPORTS.
4. CHILD PROTECTIVE SERVICES RECORDS.
5. DOMESTIC VIOLENCE SHELTER RECORDS.
6. SCHOOL RECORDS.
7. WITNESS TESTIMONY.
H. IF THE COURT DETERMINES THAT A PARTY TO A PROCEEDING HAS BEEN CONVICTED OF A DRUG OFFENSE UNDER TITLE 13, CHAPTER 34 OR A VIOLATION OF SECTION 28-1381, 28-1382 OR 28-1383, WITHIN TWELVE MONTHS BEFORE THE REQUEST FOR ADOPTION OR MODIFICATION OF A PARENTING PLAN, THERE IS A REBUTTABLE PRESUMPTION THAT IT IS CONTRARY TO THE CHILD'S BEST INTERESTS FOR THAT PERSON TO SHARE IN THE DECISION MAKING ON BEHALF OF THE CHILD OR TO HAVE SUBSTANTIAL RESIDENTIAL TIME, OR BOTH. IN MAKING THIS DETERMINATION THE COURT SHALL STATE ITS FINDINGS OF FACT TO SUPPORT ITS DETERMINATION THAT THE PERSON WAS CONVICTED OF THE OFFENSE AND ITS FINDINGS THAT THE PARENTING PLAN ADOPTED BY THE COURT APPROPRIATELY PROTECTS THE CHILD.
I. TO DETERMINE IF THE PERSON HAS REBUTTED THE PRESUMPTION ESTABLISHED BY THIS SECTION, THE COURT AT A MINIMUM SHALL CONSIDER THE FOLLOWING EVIDENCE:
1. THE ABSENCE OF ANY CONVICTION OF ANY OTHER DRUG OFFENSE DURING THE PREVIOUS FIVE YEARS.
2. THE RESULTS OF RANDOM DRUG TESTING FOR A SIX MONTH PERIOD THAT INDICATES THAT THE PERSON IS NOT USING DRUGS PROHIBITED UNDER TITLE 13, CHAPTER 34.
J. UNLESS OTHERWISE PROVIDED BY COURT ORDER OR LAW, ON REASONABLE REQUEST BOTH PARENTS ARE ENTITLED TO HAVE EQUAL ACCESS DIRECTLY FROM THE CUSTODIAN OF THE RECORDS OR FROM THE OTHER PARENT TO DOCUMENTS AND OTHER INFORMATION CONCERNING THE CHILD'S EDUCATION AND PHYSICAL, MENTAL, MORAL AND EMOTIONAL HEALTH INCLUDING MEDICAL, SCHOOL, POLICE, COURT AND OTHER RECORDS. A PERSON WHO DOES NOT COMPLY WITH A REASONABLE REQUEST SHALL REIMBURSE THE REQUESTING PARENT FOR COURT COSTS AND ATTORNEY FEES INCURRED BY THAT PARENT TO ENFORCE THIS SUBSECTION. A PARENT WHO ATTEMPTS TO RESTRICT THE RELEASE OF DOCUMENTS OR INFORMATION BY THE CUSTODIAN UNDER THIS SUBSECTION WITHOUT A PRIOR COURT ORDER IS SUBJECT TO APPROPRIATE LEGAL SANCTIONS.
K. THE COURT MAY SPECIFY ONE PARENT AS THE PRIMARY CARETAKER OF THE CHILD AND ONE HOME AS THE PRIMARY HOME OF THE CHILD FOR THE PURPOSES OF DEFINING ELIGIBILITY FOR PUBLIC ASSISTANCE. THIS FINDING DOES NOT DIMINISH THE RIGHTS OF EITHER PARENT AND DOES NOT CREATE A PRESUMPTION FOR OR AGAINST EITHER PARENT IN A PROCEEDING FOR THE MODIFICATION OF AN EXISTING PARENTING PLAN.
L. IN A CONTESTED PROCEEDING, THE COURT SHALL MAKE SPECIFIC FINDINGS ON THE RECORD ABOUT ALL RELEVANT FACTORS AND THE REASONS WHY THE DECISION IS IN THE BEST INTERESTS OF THE CHILD.
M. A MOTION TO MODIFY AN EXISTING CUSTODY DECREE OR A PARENTING PLAN SHALL NOT BE MADE EARLIER THAN ONE YEAR AFTER ENTRY OF THE DECREE OR PLAN, UNLESS THE COURT PERMITS MODIFICATION BASED ON AFFIDAVITS THAT THERE IS REASON TO BELIEVE THE CHILD'S PRESENT ENVIRONMENT MAY SERIOUSLY ENDANGER THE CHILD'S PHYSICAL, MENTAL, MORAL OR EMOTIONAL HEALTH. AT ANY TIME AFTER A PARENTING PLAN IS ADOPTED, A PARENT MAY PETITION THE COURT FOR MODIFICATION OF THE PLAN ON THE BASIS OF EVIDENCE THAT DOMESTIC VIOLENCE PURSUANT TO SECTION 13-3601 OR 13-3601.01 OR CHILD ABUSE OCCURRED SINCE THE ENTRY OF THE PLAN. SIX MONTHS AFTER A PARENTING PLAN IS ENTERED, A PARENT MAY PETITION THE COURT FOR MODIFICATION OF THE PLAN BASED ON THE FAILURE OF THE OTHER PARENT TO COMPLY WITH THE PROVISIONS OF THE PLAN. A MOTION OR PETITION TO MODIFY A PARENTING PLAN SHALL MEET THE REQUIREMENTS OF SECTIONS 25-408 AND 25-411.
N. THE COURT SHALL ASSESS ATTORNEY FEES AND COSTS AGAINST A PERSON WHO IS SEEKING THE MODIFICATION IF THE COURT FINDS THAT THE MODIFICATION ACTION IS VEXATIOUS AND CONSTITUTES HARASSMENT.
O. IN A PROCEEDING UNDER THIS ARTICLE, EITHER PERSON MAY REQUEST ATTORNEY FEES, COSTS AND EXPERT WITNESS FEES TO ENABLE THE PERSON WITH INSUFFICIENT RESOURCES TO OBTAIN ADEQUATE LEGAL REPRESENTATION AND TO PREPARE EVIDENCE FOR THE HEARING. IF THE COURT FINDS THERE IS A FINANCIAL DISPARITY BETWEEN THE PARTIES, THE COURT MAY ORDER PAYMENT OF REASONABLE FEES, EXPENSES AND COSTS TO ALLOW ADEQUATE PREPARATION.
P. FOR ANY ORDER ENTERED UNDER THIS SECTION, THE COURT SHALL DETERMINE AN AMOUNT OF CHILD SUPPORT IN ACCORDANCE WITH SECTION 25-320 AND GUIDELINES ESTABLISHED PURSUANT TO THAT SECTION. AN AWARD OF JOINT CUSTODY DOES NOT DIMINISH THE RESPONSIBILITY OF EITHER PARENT TO PROVIDE FOR THE SUPPORT OF THE CHILD.
Q. THE COURT SHALL NOT REQUEST OR ORDER THE SERVICES OF THE DIVISION OF CHILDREN AND FAMILY SERVICES IN THE DEPARTMENT OF ECONOMIC SECURITY UNLESS IT BELIEVES THAT A CHILD MAY BE THE VICTIM OF ABUSE OR NEGLECT AS DEFINED IN SECTION 8-201.
Sec.¦4.¦¦Conforming legislation
The legislative council staff shall prepare proposed legislation conforming the Arizona Revised Statutes to the provisions of this act for consideration in the forty- fifth legislature, second regular session.