When two co-parents are in military service, it can add a fresh set of complications. Divorce and custody arrangements are under state law, not military law, but service regulations and duties still play a dominant role in family life.

Servicemembers have legal protections against disadvantage in child custody cases, but if the parents cannot agree, the court must decide a schedule based on the best interests of the child. How do Arizona courts handle child custody when both parents are in service?

Child Custody Proceedings in Arizona

People generally refer to child care rights as “custody,” but in Arizona courts, custody is handled and discussed as two separate aspects—legal decision-making and parenting time. Legal decision-making power governs the child’s upbringing, schooling, health care, and other vital interests. Co-parents can share joint legal decision-making power, or one parent may have sole decision-making power. This power may or may not correspond with how much parenting time each parent has.

In a custody proceeding, a co-parent can request fees and costs if they have “insufficient resources” to pay for “adequate” legal representation. If there is a financial disparity, the court can also order one co-parent to cover the other’s expenses for the proceeding. See A.R.S. § 25-403.08.

The Child’s Best Interest

When co-parents cannot agree on a plan for legal decision-making powers or parenting time, they must at least consider alternative dispute resolution (ADR), such as mediation or a settlement conference (SC). ADR does not work in all situations, especially those involving domestic abuse and high-conflict partners.

If ADR is not the right choice, the court must decide according to the best interests of the child. To determine this, the law sets out a number of factors that the court must consider, including:

  • “The past, present and potential future relationship between the parent and the child”
  • The child’s interaction and interrelationship with their parents, siblings, “and any other person who may significantly affect the child’s best interest”
  • “The child’s adjustment to home, school and community”
  • The child’s wishes, if they are “of suitable age and maturity”
  • “The mental and physical health of all individuals involved”
  • “Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent” (excepting efforts at abuse prevention)
  • “Whether one parent intentionally misled the court”
  • “Whether there has been domestic violence or child abuse”
  • Any coercion or duress involved in the process

See § 25-403.

The Parenting Plan

Each party must submit a proposed parenting plan to the court. The court will prefer a plan that allows co-parents to share legal decision-making power and maximizes each parent’s parenting time.

A parenting plan must set out, among other things:

  • “Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training”
  • “A practical schedule of parenting time for the child, including holidays and school vacations”
  • “A procedure for the exchanges of the child, including location and responsibility”
  • A procedure for resolving “proposed changes, relocation of the child … disputes and alleged breaches”
  • “A procedure for periodic review of the plan’s terms”
  • “A procedure for communicating with each other about the child, including methods and frequency”

See § 25-403.02. The Arizona Supreme Court provides a guide to creating a parenting plan.

In Arizona, most people cannot request modifications to a parenting plan before a year has passed. Military parents facing deployment may make that request, but they may have other options as well.

Military Child Custody: Rights and Responsibilities

Family Care Plans (FCPs)

The DoD requires military parents to file an FCP with information and vital documents for the family to use during a deployment. The FCP’s details will vary based on your service requirements and personal situation, but it should include a nomination for a temporary guardian.

A servicemember facing deployment that will affect their ability to exercise parenting time can ask the court to delegate their parenting time to that guardian, if it is a family member or someone else “who has a close and substantial relationship to the minor child.” See § 25-411.

Although the FCP does not have power in state law, an Arizona court will consider your FCP in custody plans. The court will accept the guardian if it finds that is in the child’s best interest. However, the chosen guardian cannot be someone who requires supervision or other limitations on parenting time.

Family Court Proceedings

Servicemembers have certain rights in state law and federal law that are intended to help ensure fairness in custody proceedings. When a servicemember is deployed far from home, an Arizona court will not enter a judgment modifying parental rights and responsibilities until at least 90 days after their return (unless the servicemember consents).

When considering the best interests of the child for custody purposes, an Arizona court cannot hold a military parent’s deployment against them—at least, not as the sole factor. See 50 USC § 3938. But in a dual-servicemember divorce, both parents may face deployment, and a parenting plan must strike a balance for the child’s sake.

On Your Side in Arizona

The division of parenting time, military benefits, and other property is no task to face alone. Our Arizona military divorce attorneys will be glad to help guide you and your children through this painful time. Call us today at 480-448-0608 to schedule your first appointment.