It has been several years since the legislature adopted ARS 25-403.02. Some people dubbed this the “equal time presumption” statute. The statute says that the court, consistent with the child’s best interests (it cites several statutes that define the child’s best interest), “… shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their children and that maximizes their respective parenting time. The court shall not prefer a parent’s proposed plan because of the parent’s or child’s gender.” (Emphasis added) There have been many seminars, many surveys and a few appeals court cases that seem to go back and forth on the issue of whether this creates a presumption in favor of equal time. We now have a new case from the Division I Court of Appeals to add to the debate about whether there is such a presumption of equal time. The case was issued on 7/23/20, Gonzalez-Gunter v. Gunter, 249 Ariz. 489.
Father, who had a parenting time schedule of approximately one third of the time, sought to have a schedule that granted him equal time with his children and mother opposed. There were suspicions of drug use but father took a hair follicle test which was negative for any drugs. The case was out of Phoenix, and the court had appointed a Court-Appointed Advisor (“CAA”) to do an evaluation of the parents and the children to make recommendations to the court. The CAA report raised concerns about the high conflict between the parents. She recommended that both parents take a course in high conflict resolution and reported that the father seemed to be not very engaged with the children and insensitive to some of their emotional needs. She reported that he failed to put their needs before his own and allowed his negative feelings towards the mother to interfere with his ability to co-parent with her.
“In Arizona the court is not required to give equal time to both parents, even if they are fit.”
The case went to trial and the CAA testified that the father’s parenting skills were not adequate enough to expand his parenting time with the children. Mother testified that father had difficulty communicating with her; there was always a backlash when they had disagreements and that he took the children out of state without her permission.
The court made findings of facts on key statutory provisions and granted mother primary residence of the children and reduced father’s parenting time to the 1st and 3rd weekends of the month, plus some vacation and holiday time (a total of 72 days a year approximately).
Father appealed, arguing the court made an error in ordering such a lopsided parenting plan and in reducing his parenting time to 72 days a year. He argued that the statutes and case law mandated a 50-50 parenting time schedule unless there was a finding that a parent was unfit or would endanger the children.
The court found that ARS 25-403.02 (B), the “equal time presumption” statute, does not mandate equal parenting time unless unfitness or endangerment is proven. The court pointed out that the statute provides that the requirement to maximize each parent’s time had to be consistent with the child’s best interest. The court cited a recent case, Woyton v. Ward, 247 Arizona 529 (App.2019) which had stated that as a general rule, equal time or near equal parenting time was “presumed to be in the child’s best interests.” The court pointed out that the Woyton case also gave the court discretion to determine parenting time based on all the evidence before it. The court went on to examine other statutes and cases that seemed to support equal time but rejected the argument that they required equal time automatically unless the parent was unfit.
Father tried to argue that the court could not cut back his time unless the mother proved that he was unfit. The court pointed to a statute that said that the court could not “restrict parenting time rights” unless it found the parenting time would be dangerous for a child, but found that simply reducing the amount of unsupervised time for a parent did not require a standard of unfitness and was not the same thing as restricting a parent’s rights.
The trial court’s ruling cutting back father’s time was upheld by the Court of Appeals and they stated that the ruling was well within the judge’s discretion under the law
A couple of take away lessons from this case are: 1.) in Arizona the court is not required to give equal time to both parents, even if they are fit; 2.) it really helps to know your judge. Based on my experience, many judges would grant equal time with facts similar to those cited in this case. The fact that parents didn’t get along, that one parent seemed less engaged than the other parent and that same parent was deemed to be selfish for many judges would not overcome their belief that it is best for both children to have as close to equal time as possible with each parent, especially in light of the “maximize their respective parenting time” language in the statute.
Also, the court seemed to follow exactly the recommendations of the CAA. It is always a risk to have an evaluation performed by an outside expert, especially when we have a statute that many judges believe promotes equal time. If there is not any serious parental dysfunction, you take a risk when you get an evaluation of a recommendation based on the biases of the evaluator. Some evaluators recommend equal time in almost every case and others are known to more easily give more time to one parent than the other. Knowing the judge’s background and leanings in regards to equal time and the evaluator’s background and leanings in regards to equal time is very important.
At the law office of Robert Barrasso, we have over 30 years of experience in trying cases. We are familiar with many of the judges and many of the evaluators who work in this area. Knowing the judge and knowing the evaluator can really help you develop a strategy to meet your needs in the case and to avoid big surprises.