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December 2012 Generations Representing Generations


As many of us are aware, Arizona courts as well as courts throughout the United States have long used the term "custody" to describe a parent's rights to legal and physical control and care of a child. Legal custody is and has been long defined as a parent or the parents' ability and right to make the major decisions affecting a child's life regarding non-emergency medical care, religious upbringing, and education. Joint legal custody referred to both parents having decision making authority, whereas sole legal custody gave one parent authority over decisions in the event of a dispute between the parents. Whether termed as sole or joint legal custody, these designations did not effect or determine parenting time for each parent. Invariably, Arizona courts found that the use of the term "custody" led to confusion between legal custody and physical custody aspects, and therefore the state legislature acted this year to eliminate the use of "custody" in the applicable Arizona statutes to clear up the confusion.

Unfortunately, despite the good intentions of the legislature, several problems may arise. For example, as all the other states still use and are familiar with the term "custody", it is uncertain what will happen when the parents and children relocate from Arizona to another state and how another jurisdiction will interpret "legal decision making" authority and enforce or modify such orders. We will try to keep you updated as the new designation takes effect and how the various courts and jurisdictions interpret it.

New Sanctions for Misconduct During Litigation
Arizona family courts have always been able to award attorneys' fees under A.R.S. §25-324 if one of the parties has taken unreasonable positions during a divorce or custody case. Now, the state legislature has added a provision in the custody statutes for mandatory sanctions, including not only attorneys' fees and costs but also possibly financial damages caused by the misconduct and diminution of the offending party's decision making authority or parenting time, if it finds that a party knowingly made false allegations against the other parent regarding domestic violence, sexual or physical abuse of the child, or substance and alcohol abuse. Sanctions can also be applied to parties who knowingly claim that such allegations against them are later found to be true. Finally, these mandatory sanctions are to be applied if a party fails to make Attorney Spotlight or produce court-ordered disclosures and discovery to the other side.

Based on the breadth and scope of the new sanctions provision, the consequences for one or both parties trying to engage in a "scorched earth" custody battle can now be very severe.

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