Can Parents Simply Agree To Change A Custody Or Decision-Making Arrangement Without The Court?

Key Takeaways:

• Parents can have unofficial agreements about parenting time and can change those agreements at will. However, this only works if parents are assured not to seriously disagree about anything.
• For co-parents who have any possibility of serious disagreement, it is better to file a parenting agreement with Family Court, toward a Court Order. This way, if there are major disagreements, the Court can help.
• When you file a Petition for modification of parenting time or legal decision-making, the Court may dismiss the case for not meeting the necessary criteria.
• If the Court does decide to hear your Petition, there is usually a wait of at least 3-6 months (except in emergent cases)
• In requests to modify, Judges first consider whether there has been a significant enough change of circumstances to merit the modification. They also look at each side’s evidence and testimony. Ultimately, the guiding factor for the Judge is the best interest of the child or children involved.
• Most requests for modification are not approved, since Judges tend to err on the side of the default, which is joint decision-making.

Parents can always agree to do whatever they would like to do regarding parenting time. However, the idea that parents simply agree and continue to agree isn’t always entirely true to life.

In fact, one of the biggest problems I see with these sorts of agreements is as follows. Let’s say two parents agree unofficially to a parenting plan, “on a handshake”, so to speak. Or perhaps they write up a parenting agreement themselves, but they never file it with the Court.

If they suddenly do not agree, or if one or the other parent stops following their end of the agreement, then their recourse in Court is quite limited.

Let me use an example from my own practice to illustrate this point. I have one case where the couple haven’t yet been divorced but have been separated. They had one of these sorts of unofficial “handshake agreements” to share equal time with the child. They had been practicing this equal time plan for about a year and a half without incident, and then lo and behold, around three weeks ago, the father decides that he’s not going to return the child to the mother.

Now it’s three weeks later, and the mother has not seen her child for three weeks. When she came to my office originally, she was incredulous that he could do what he did, because they “had an agreement.” However, there was no agreement registered with the Court, because neither party ever filed for a divorce or establishment of paternity.

In a case like that, if you already have an established, unofficial agreement, you can in a sense do your own modification. You can both agree that the arrangement isn’t working, and you are going to change it. This happens a lot as well.

There are cases where ex-partners can get along fine and be perfectly agreeable and cooperative co-parents without major disagreements. For people like that, unofficial parenting plans and modifications work just fine.

However, if a separated couple cannot be absolutely sure that they’re never going to have any major fights or even disagreements, then it makes far more sense to make everything official by filing whatever plan or agreement that you reach through the Court.

In legal parlance, this agreement is referred to as a Stipulation. The Court may charge a filing fee of around $80.00. When you file it appropriately with the Court, this Stipulation becomes a Court Order, which is signed by a judge. That signature makes the plan enforceable by the Court.

This way, if one of the parties down the road doesn’t follow the Order, you have legal recourse, and can ask the Court for help. If you don’t register the agreement with the court, you can’t go to the Court and ask for their assistance, because they have no authority to support that agreement.

How Long Does It Take For The Court To Decide On Whether Or Not To Grant A Petition To Make A Change To Parenting Time Or Legal Decision-Making In Arizona?

The first thing to consider when thinking about the timing of a Court Decision on a modification request is whether the Court is even going to hear the request (a.k.a., the Petition). They may decide to dismiss the Petition outright.

You will usually know whether the Court is going to hear or dismiss the Petition around 30 days before you know how they decided (if they agree to hear it).

Most Petitions are not rejected outright, but some are. Often, when people file on their own, they don’t know that they must explain to the Court what the change of circumstances are that necessitates the modification being requested.

If a Judge reviews a Petition and doesn’t see that there is clearly (or, in legal parlance, “on its face”) a change in circumstance, or that the change in circumstance is substantial enough to justify even filing the Petition, they will reject the Petition and dismiss it. They don’t want to clog the Courts with unnecessary hearings that won’t go anywhere because the plaintiff can’t prove the first basic requirement necessary to grant a modification.

So, the first step is getting your Petition even to be accepted by the Court.

If your Petition is accepted and you’ve given Notice to the other party, the Court will typically set a date for a hearing. If the issue is big or major, they might first set a Resolution Management Conference. This will decide how long you might need for this trial, and whether mediation might help the parties come to a settlement out of Court. If those options are exhausted, then they will set a hearing.

As far as timing goes, unless you’ve asked for some sort of emergency or expedited relief, you’re probably going to have to wait at least 3 to 6 months before you even have a hearing.

What Factors Are The Judge Going To Use To Decide Whether Or Not To Approve A Modification To Parenting Time Or Legal Decision-Making?

When the Judge looks at whether to approve a modification to parenting time or legal decision-making, they are first and foremost going to look at whether there’s a change of circumstances significant enough to justify the request.

Most people asking to modify a legal decision-making authority are only requesting in those narrow circumstances where they have specific disagreements (i.e., about which school the child should go to).

It should also be noted that most requests for modifications aren’t approved. This is because, most of the time, the Judge will prefer the default, which is joint decision-making.

Still, when making a ruling on these matters, the Judge is going to examine a wide variety of issues, with specific focus on the topic of disagreement (i.e., school choice). The overarching, guiding principal of these examinations is to find for the best interest of the child or children involved. The specific evidence that a Judge examines and considers in making that ruling depends on the area of disagreement as well as the case itself.

There’s a lot of evidence that gets presented at a hearing about, for example, a disagreement about where a child should go to school.

Each side will present their case for their preferred school in depth, with arguments and perhaps testimonies and statistics showing that their school is in the best interest of the child. It may include arguments about the relative distances between each parent and the school, as well as other details specific to each case. It’s going to be highly dependent on what the actual issue is.

For more information on Family Law In Arizona, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (623) 526-5597 today.