Jan 042013

By Linda Kor
A new state law went into effect last week aimed at encouraging parents who no longer live together to work together for the benefit of their children when determining their welfare in court proceedings. The law actually amends an older law by making changes in wording and requirements, many of which have already been standard considerations for judges.
“The key benefit of the new law is that it codifies what the courts have already been doing. Judges have already been making decisions on what’s been outlined in the law and that is to have the parents work together,” explained Navajo County Superior Court Presiding Judge Michala Ruechel.
For example, wording such as “physical custody” was changed to “parenting time” and “legal custody” was changed to “legal decision-making authority.” The changes are being made in an effort to clarify that the subject involved is a child, not a possession.
“The previous wording tended to make a child sound more like an object, something to be won or lost,” explained Ruechel. Parents with decision-making authority determine everything from a child’s religion and healthcare, to clothing and haircuts, while parenting time indicates how often a child is with a parent and for how long. Under this new law, each of those responsibilities will be handled as a separate matter.
According to Ruechel, even if a parent doesn’t have the child a majority of the time, he or she can still take part in making decisions on behalf of the child. But in other instances, a parent who does not spend time with a child may not understand the child’s needs, and decisions regarding the child’s well being would be better left to the parent with whom the child is living.
Another change ensures that a parent involved in the process who purposely misleads the courts or causes unnecessary litigation during the process will be fined, something that was optional for the courts in the past. “Personally, this hasn’t been my experience. It also has to be realized that sometimes a false claim presented by a parent isn’t necessarily false, it just lacks proof,” stated Ruechel. “Just because we don’t know it happened doesn’t mean it didn’t, or that the parent is purposely hindering proceedings by presenting it.”
Even a parent who is not granted sole or joint legal decision-making authority is entitled to reasonable parenting time for the wellbeing of the minor, the exception being a parent who has been convicted of a violent crime.
“There are always circumstances to consider. If a parent lives a long ways away, it may be that the only reasonable visitation is every other weekend; it depends on a parent’s availability. In instances where parents live closer together, it could mean more time with the child,” stated Ruechel. “The overall plan is to get everyone to think of how to work together instead of viewing it as who won or who lost. It’s a different sense of re-evaluation.”
The law is also specific in stating that the gender of either the child or parent is not to be a factor when determining where the child should live. According to Ruechel, this has not been an issue for quite some time. “A situation like that is less likely in this generation. I have had a significant number of cases where I’ve given sole custody to the father. It’s a lot less gender biased today than it was in the previous decade,” she said, adding that statistically it may appear that mothers receive custody more often, but it’s really based on the circumstances of the parent, and the mother may have more availability to provide care for the child than the father.
While the law encourages parents to play a greater role in determining their child’s welfare, the courts ultimately have the final say on who will be the decision maker and in determining parenting time.