Smith v. Smith

There is no presumption for equal parenting time; instead, the court should apply a holistic analysis in determining the child's best interests
  • Is an initial parenting time order subject to A.R.S. § 25-411(J), which requires the court to make an endangerment finding before restricting parenting time?
  • Is the court required to provide a specific written explanation when it orders less than equal parenting time?

Facts and Procedural History

Mother absconded to Idaho with the parties’ two-year-old child, without notice to Father. The court required Mother to return to Arizona and entered temporary orders for equal parenting time. As the parties approached trial, Father requested a mental health evaluation of Mother. The evaluator determined that Mother had mental health issues, and may not be able to fulfill basic parenting duties such as filling out medical forms. This was especially concerning in this case because the child had a rare genetic disorder that required frequent doctor visits.

Following the final hearing, the court ordered all of Mother’s parenting time to be supervised. Mother appealed, arguing that Arizona has a legal presumption for equal parenting time, and that the court did not make specific findings justifying an award of less than equal time.


There is no legal presumption for equal parenting time in Arizona, despite prior opinions that might have implied something different. Although it is the public policy of Arizona for both parents to participate in legal decision-making and have “substantial, frequent, meaningful and continuing contact” with their children, there is no presumption for equal parenting time that a parent must overcome. Equal parenting time is a “starting point” for the court’s best-interests analysis, and evidence leads the court to the appropriate parenting time schedule.

The trial court does not need to make specific findings explaining its decision for less than equal parenting time, other than the required best-interests findings under A.R.S. § 25-403. Because there is no legal presumption for equal time, there is no requirement for the court to specifically explain why it awarded one parent less time. (Although in most cases, it will probably be clear from the findings anyway.)

When entering an initial parenting time order, the court does not need to make an endangerment finding to restrict a parent’s parenting time (e.g., supervised parenting time). A.R.S. § 25-411(J) applies to subsequent modifications of parenting time, but doesn’t apply to an initial order–even if the court ordered more liberal time on a temporary basis. The court can order supervised parenting time when establishing permanent parenting-time orders for the first time, and does not need to make any specific endangerment findings to support its order. In contrast, subsequent orders modified after the initial decree would require such a finding.

The court has broad discretion to determine parenting time, and the overarching factor in the court’s holistic analysis is the child’s best interests–unrestrained by any legal presumption that might sway the court one way or the other. Equal parenting time may be a “starting point” assuming both parents are fit, but the evidence may justify an award of less than equal time even if the child is not “endangered” under A.R.S. § 25-411(J).

Smith v. Smith, 508 P.3d 793 (App. 2022).