Smith v. Smith

  • 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).

Arizona House Bill 2642

Arizona House Bill 2642 passed the House yesterday. The bill would give children 14 years and up the right to choose which parent they will live with in a divorce or custody proceeding. If the child is under 14, it requires the court to “strongly consider” the wishes of the child. The current law gives much more discretion to judges when considering a child’s wishes.

In some family court cases, a child is mature enough to express a preference on who they want to live with. But in many more cases, children are being influenced by one or both parents in inappropriate ways. It is not uncommon for one parent to poison a child’s relationship with the other parent, even when there are no legitimate concerns about parental fitness.

If the law passes, it will put extreme pressure on children in divorce proceedings to pick sides. Their parents will know that, if they can convince the child to live with them, it will almost ensure a favorable outcome in their case. An award of primary custody also has a significant effect on child support. In the middle of a divorce case, parents frequently act out of malice for the other parent or are motivated by financial gain, rather than the child’s best interest.

A child’s wishes should be a factor in determining custody (which is already the case under current law). However, it should not be the deciding factor. HB2642 would cause huge negative effects in the family court system and on children with divorced parents. It would also create a flood of litigation from parents who have already laid the groundwork to alienate the other parent. I oppose HB2642 and encourage you to contact your representative to express your views.

You can track the bill’s progress here.