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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Marital and Domestic Relations
Chapter : CHILD CUSTODY AND VISITATION
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25-401 Jurisdiction; commencement of proceedings
A. Jurisdiction for child custody proceedings is governed by chapter 8 of this
title.
B. A child custody proceeding is commenced in the superior court:
1. By a parent, by filing a petition for either of the following:
(a) Dissolution or legal separation.
(b) Custody of a child born out of wedlock if there has been a prior establishment
of maternity or paternity.
2. By a person other than a parent, by filing a petition for custody of the child
in the county in which the child is permanently resident or found, but only if the child
is not in the physical custody of one of the child's parents.
3. At the request of any person who is a party to a maternity or paternity
proceeding pursuant to chapter 6, article 1 of this title.
25-402 Definitions
In this article, unless the context otherwise requires:
1. "Joint custody" means joint legal custody or joint physical custody, or both.
2. "Joint legal custody" means the condition under which both parents share legal
custody and neither parent's rights are superior, except with respect to specified
decisions as set forth by the court or the parents in the final judgment or order.
3. "Joint physical custody" means the condition under which the physical residence
of the child is shared by the parents in a manner that assures that the child has
substantially equal time and contact with both parents.
4. "Parenting time" means the condition under which a parent has the right to have
a child physically placed with the parent and the right and responsibility to make,
during that placement, routine daily decisions regarding the child's care consistent with
the major decisions made by a person having legal custody.
5. "Sole custody" means the condition under which one person has legal custody.
25-403.01 Sole and joint custody
A. In awarding child custody, the court may order sole custody or joint custody.
This section does not create a presumption in favor of one custody arrangement over
another. The court in determining custody shall not prefer a parent as custodian because
of that parent's sex.
B. The court may issue an order for joint custody over the objection of one of the
parents if the court makes specific written findings of why the order is in the child's
best interests. In determining whether joint custody is in the child's best interests,
the court shall consider the factors prescribed in section 25-403, subsection A and all
of the following:
1. The agreement or lack of an agreement by the parents regarding joint custody.
2. Whether a parent's lack of agreement is unreasonable or is influenced by an
issue not related to the best interests of the child.
3. The past, present and future abilities of the parents to cooperate in
decision-making about the child to the extent required by the order of joint custody.
4. Whether the joint custody arrangement is logistically possible.
C. The court may issue an order for joint custody of a child if both parents agree
and submit a written parenting plan and the court finds such an order is in the best
interests of the child. The court may order joint legal custody without ordering joint
physical custody. 25-403.02 Parenting plans
A. Before an award is made granting joint custody, the parents shall submit a
proposed parenting plan that includes at least the following:
1. Each parent's rights and responsibilities for the personal care of the child and
for decisions in areas such as education, health care and religious training.
2. A schedule of the physical residence of the child, including holidays and school
vacations.
3. A procedure by which proposed changes, disputes and alleged breaches may be
mediated or resolved, which may include the use of conciliation services or private
counseling.
4. A procedure for periodic review of the plan's terms by the parents.
5. A statement that the parties understand that joint custody does not necessarily
mean equal parenting time.
B. If the parents are unable to agree on any element to be included in a parenting
plan, the court shall determine that element. The court may determine other factors that
are necessary to promote and protect the emotional and physical health of the child. 25-403.03 Domestic violence and child abuse
A. Notwithstanding subsection D of this section, joint custody shall not be awarded
if the court makes a finding of the existence of significant domestic violence pursuant
to section 13-3601 or if the court finds by a preponderance of the evidence that there
has been a significant history of domestic violence.
B. The court shall consider evidence of domestic violence as being contrary to the
best interests of the child. The court shall consider the safety and well-being of the
child and of the victim of the act of domestic violence to be of primary importance. The
court shall consider a perpetrator's history of causing or threatening to cause physical
harm to another person.
C. To determine if a person has committed an act of domestic violence the court,
subject to the rules of evidence, shall consider all relevant factors including the
following:
1. Findings from another court of competent jurisdiction.
2. Police reports.
3. Medical reports.
4. Child protective services records.
5. Domestic violence shelter records.
6. School records.
7. Witness testimony.
D. If the court determines that a parent who is seeking custody has committed an
act of domestic violence against the other parent, there is a rebuttable presumption that
an award of custody to the parent who committed the act of domestic violence is contrary
to the child's best interests. This presumption does not apply if both parents have
committed an act of domestic violence. For the purposes of this subsection, a person
commits an act of domestic violence if that person does any of the following:
1. Intentionally, knowingly or recklessly causes or attempts to cause sexual
assault or serious physical injury.
2. Places a person in reasonable apprehension of imminent serious physical injury
to any person.
3. Engages in a pattern of behavior for which a court may issue an ex parte order
to protect the other parent who is seeking child custody or to protect the child and the
child's siblings.
E. To determine if the parent has rebutted the presumption the court shall consider
all of the following:
1. Whether the parent has demonstrated that being awarded sole custody or joint
physical or legal custody is in the child's best interests.
2. Whether the parent has successfully completed a batterer's prevention program.
3. Whether the parent has successfully completed a program of alcohol or drug abuse
counseling, if the court determines that counseling is appropriate.
4. Whether the parent has successfully completed a parenting class, if the court
determines that a parenting class is appropriate.
5. If the parent is on probation, parole or community supervision, whether the
parent is restrained by a protective order that was granted after a hearing.
6. Whether the parent has committed any further acts of domestic violence.
F. If the court finds that a parent has committed an act of domestic violence, that
parent has the burden of proving to the court's satisfaction that parenting time will not
endanger the child or significantly impair the child's emotional development. If the
parent meets this burden to the court's satisfaction, the court shall place conditions on
parenting time that best protect the child and the other parent from further harm. The
court may:
1. Order that an exchange of the child must occur in a protected setting as
specified by the court.
2. Order that an agency specified by the court must supervise parenting time. If
the court allows a family or household member to supervise parenting time, the court
shall establish conditions that this person must follow during parenting time.
3. Order the parent who committed the act of domestic violence to attend and
complete, to the court's satisfaction, a program of intervention for perpetrators of
domestic violence and any other counseling the court orders.
4. Order the parent who committed the act of domestic violence to abstain from
possessing or consuming alcohol or controlled substances during parenting time and for
twenty-four hours before parenting time.
5. Order the parent who committed the act of domestic violence to pay a fee to the
court to defray the costs of supervised parenting time.
6. Prohibit overnight parenting time.
7. Require a bond from the parent who committed the act of domestic violence for
the child's safe return.
8. Order that the address of the child and the other parent remain confidential.
9. Impose any other condition that the court determines is necessary to protect the
child, the other parent and any other family or household member.
G. The court shall not order joint counseling between a victim and the perpetrator
of domestic violence. The court may refer a victim to appropriate counseling and shall
provide a victim with written information about available community resources related to
domestic violence.
H. The court shall not request or order the services of the division of children
and family services in the department of economic security unless it believes that a
child may be the victim of child abuse or neglect as defined in section 8-201.
I. In determining whether the absence or relocation of a parent shall be weighed
against that parent in determining custody or parenting time, the court may consider
whether the absence or relocation was caused by an act of domestic violence by the other
parent. 25-403.04 Drug offenses
A. If the court determines that a parent has been convicted of any drug offense
under title 13, chapter 34 or any violation of section 28-1381, 28-1382 or 28-1383 within
twelve months before the petition or the request for custody is filed, there is a
rebuttable presumption that sole or joint custody by that parent is not in the child's
best interests. In making this determination the court shall state its:
1. Findings of fact that support its determination that the parent was convicted of
the offense.
2. Findings that the custody or parenting time arrangement ordered by the court
appropriately protects the child.
B. To determine if the person has rebutted the presumption, at a minimum the court
shall consider the following evidence:
1. The absence of any conviction of any other drug offense during the previous five
years.
2. Results of random drug testing for a six month period that indicate that the
person is not using drugs as proscribed by title 13, chapter 34. 25-403.05 Sexual offenders; murderers; custody and parenting time
Unless the court finds that there is no significant risk to the child and states its
reasons in writing, The court shall not grant a person sole or joint physical or legal
custody of a child or unsupervised parenting time with a child if the person:
1. Is a registered sex offender.
2. Has been convicted of murder in the first degree and the victim of the murder
was the other parent of the child who is the subject of the order. In making its
finding, the court may consider, among other factors, the following:
(a) Credible evidence that the convicted parent was a victim of domestic violence,
as defined in section 13-3601, committed by the murdered parent.
(b) Testimony of an expert witness that the convicted parent suffered trauma from
abuse committed by the murdered parent.
25-403.06 Parental access to records
A. Unless otherwise provided by court order or law, on reasonable request both
parents are entitled to have equal access to documents and other information concerning
the child's education and physical, mental, moral and emotional health including medical,
school, police, court and other records directly from the custodian of the records or
from the other parent.
B. A person who does not comply with a reasonable request shall reimburse the
requesting parent for court costs and attorney fees incurred by that parent to force
compliance with this section.
C. A parent who attempts to restrict the release of documents or information by the
custodian without a prior court order is subject to appropriate legal sanctions. 25-403.07 Identification of a primary caretaker and public assistance
The court may specify one parent as the primary caretaker of the child and one home
as the primary home of the child for the purposes of defining eligibility for public
assistance. This finding does not diminish the rights of either parent and does not
create a presumption for or against either parent in a proceeding for the modification of
a custody order. 25-403.08 Resources and fees
A. In a proceeding regarding sole custody or joint custody, either party may
request attorney fees, costs and expert witness fees to enable the party with
insufficient resources to obtain adequate legal representation and to prepare evidence
for the hearing.
B. If the court finds there is a financial disparity between the parties, the court
may order payment of reasonable fees, expenses and costs to allow adequate preparation. 25-403.09 Child support
A. For any custody order entered under this article, the court shall determine an
amount of child support in accordance with section 25-320 and guidelines established
pursuant to that section.
B. An award of joint custody does not diminish the responsibility of either parent
to provide for the support of the child. 25-403 Custody; best interests of child
A. The court shall determine custody, either originally or on petition for
modification, in accordance with the best interests of the child. The court shall
consider all relevant factors, including:
1. The wishes of the child's parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. The interaction and interrelationship of the child with the child's parent or
parents, the child's siblings and any other person who may significantly affect the
child's best interest.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful
continuing contact with the other parent.
7. Whether one parent, both parents or neither parent has provided primary care of
the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an
agreement regarding custody.
9. Whether a parent has complied with chapter 3, article 5 of this title.
10. Whether either parent was convicted of an act of false reporting of child abuse
or neglect under section 13-2907.02.
B. In a contested custody case, the court shall make specific findings on the
record about all relevant factors and the reasons for which the decision is in the best
interests of the child. 25-404 Temporary orders
A. A party to a custody proceeding may move for a temporary custody order. This
motion must be supported by pleadings as provided in section 25-411. The court may award
temporary custody under the standards of section 25-403 after a hearing, or, if there is
no objection, solely on the basis of the pleadings.
B. If a proceeding for dissolution of marriage or legal separation is dismissed,
any temporary custody order is vacated unless a parent or the child's custodian moves
that the proceeding continue as a custody proceeding and the court finds, after a
hearing, that the circumstances of the parents and the best interest of the child require
that a custody decree be issued.
C. If a custody proceeding commenced in the absence of a petition for dissolution
of marriage or legal separation is dismissed, any temporary custody order thereby is
vacated.
25-405 Interviews by court; professional assistance
A. The court may interview the child in chambers to ascertain the child's wishes as
to the child's custodian and as to parenting time.
B. The court may seek the advice of professional personnel, whether or not employed
by the court on a regular basis. The advice given shall be in writing and shall be made
available by the court to counsel, on request, under such terms as the court
determines. Counsel may examine as a witness any professional personnel consulted by the
court, unless that right is waived.
25-406 Investigations and reports
A. In contested custody proceedings, and in other custody proceedings if a parent
or the child's custodian so requests, the court may order an investigation and report
concerning custodial arrangements for the child. The investigation and report may be
made by the court social service agency, the staff of the juvenile court, the local
probation or welfare department, or a private person. The report must include a written
affirmation by the person completing the report that the person has met the training
requirements prescribed in subsection C.
B. If an investigation or report is ordered pursuant to this section or if the
court appoints a family court advisor, the court shall allocate cost based on the
financial circumstances of both parties.
C. Beginning on July 1, 2006, the court shall require any person who conducts an
investigation or prepares a report pursuant to this section to receive training that
meets the minimum standards prescribed by the domestic relations committee, established
pursuant to section 25-323.02 as follows:
1. Six initial hours of domestic violence training.
2. Six initial hours of child abuse training.
3. Four subsequent hours of training every two years on domestic violence and child
abuse.
D. A person that has completed professional training to become licensed or
certified may use that training to completely or partially fulfill the requirements in
subsection C if the training included at least six hours each on domestic violence and
child abuse if the training meets the minimum standards prescribed by the domestic
relations committee. Subsequent professional training in these subject matters may be
used to partially or completely fulfill the training requirements prescribed in
subsection C if the training meets the minimum standards prescribed by the domestic
relations committee.
E. A physician who is licensed pursuant to title 32, chapter 13 or 17 is exempt
from the training requirements prescribed in subsection C.
F. In preparing a report concerning a child, the investigator may consult any
person who may have information about the child or the child's potential custodial
arrangements.
G. The court shall mail the investigator's report to counsel at least ten days
prior to the hearing. The investigator shall make available to counsel the names and
addresses of all persons whom the investigator has consulted. Any party to the
proceeding may call for examination of the investigator and any person consulted by the
investigator.
25-407 Custody hearings; priority; costs; record
A. Custody proceedings shall receive priority in being set for hearing.
B. The court may tax as costs the payment of necessary travel and other expenses
incurred by any person whose presence at the hearing the court deems necessary to
determine the best interest of the child.
C. The court, without a jury, shall determine questions of law and fact. If it
finds that a public hearing may be detrimental to the child's best interest, the court
may exclude the public from a custody hearing, but may admit any person who has a direct
and legitimate interest in the particular case or a legitimate educational or research
interest in the work of the court.
D. If the court finds that to protect the child's welfare, the record of any
interview, report, investigation, or testimony in a custody proceeding should be kept
secret, the court may then make an appropriate order sealing the record.
25-408 Rights of noncustodial parent; parenting time; relocation of child; exception; enforcement; access to records
A. A parent who is not granted custody of the child is entitled to reasonable
parenting time rights to ensure that the minor child has frequent and continuing contact
with the noncustodial parent unless the court finds, after a hearing, that parenting time
would endanger seriously the child's physical, mental, moral or emotional health.
B. If by written agreement or court order both parents are entitled to custody or
parenting time and both parents reside in the state, at least sixty days' advance written
notice shall be provided to the other parent before a parent may do either of the
following:
1. Relocate the child outside the state.
2. Relocate the child more than one hundred miles within the state.
C. The notice required by this section shall be made by certified mail, return
receipt requested, or pursuant to the ARIZONA rules of civil procedure. A parent who
does not comply with the notification requirements of this subsection is subject to court
sanction. The court may impose a sanction that will affect custody or parenting time only
in accordance with the child's best interests.
D. Within thirty days after notice is made the nonmoving parent may petition the
court to prevent relocation of the child. After expiration of this time any petition or
other application to prevent relocation of the child may be granted only on a showing of
good cause. This subsection does not prohibit a parent who is seeking to relocate the
child from petitioning the court for a hearing, on notice to the other parent, to
determine the appropriateness of a relocation that may adversely affect the other
parent's custody or parenting time rights.
E. Subsection B of this section does not apply if provision for relocation of a
child has been made by a court order or a written agreement of the parties that is dated
within one year of the proposed relocation of the child.
F. Pending the determination by the court of a petition or application to prevent
relocation of the child:
1. A parent with sole custody or a parent with joint custody and primary physical
custody who is required by circumstances of health or safety or employment of that parent
or that parent's spouse to relocate in less than sixty days after written notice has been
given to the other parent may temporarily relocate with the child.
2. A parent who shares joint custody and substantially equal physical custody and
who is required by circumstances of health or safety or employment of that parent or that
parent's spouse to relocate in less than sixty days after written notice has been given
to the other parent may temporarily relocate with the child only if both parents execute
a written agreement to permit relocation of the child.
G. The court shall determine whether to allow the parent to relocate the child in
accordance with the child's best interests. The burden of proving what is in the child's
best interests is on the parent who is seeking to relocate the child. To the extent
practicable the court shall also make appropriate arrangements to ensure the continuation
of a meaningful relationship between the child and both parents.
H. The court shall not deviate from a provision of any parenting plan or other
written agreement by which the parents specifically have agreed to allow or prohibit
relocation of the child unless the court finds that the provision is no longer in the
child's best interests. There is a rebuttable presumption that a provision from any
parenting plan or other written agreement is in the child's best interests.
I. In determining the child's best interests the court shall consider all relevant
factors including:
1. The factors prescribed under section 25-403.
2. Whether the relocation is being made or opposed in good faith and not to
interfere with or to frustrate the relationship between the child and the other parent or
the other parent's right of access to the child.
3. The prospective advantage of the move for improving the general quality of life
for the custodial parent or for the child.
4. The likelihood that the parent with whom the child will reside after the
relocation will comply with parenting time orders.
5. Whether the relocation will allow a realistic opportunity for parenting time
with each parent.
6. The extent to which moving or not moving will affect the emotional, physical or
developmental needs of the child.
7. The motives of the parents and the validity of the reasons given for moving or
opposing the move including the extent to which either parent may intend to gain a
financial advantage regarding continuing child support obligations.
8. The potential effect of relocation on the child's stability.
J. The court shall assess attorney fees and court costs against either parent if
the court finds that the parent has unreasonably denied, restricted or interfered with
court-ordered parenting time.
K. Pursuant to section 25-403.06, the noncustodial parent is entitled to have
access to documents and other information about the child unless the court finds that
access would endanger seriously the child's or the custodial parent's physical, mental,
moral or emotional health.
25-409 Visitation rights of grandparents and great-grandparents
A. The superior court may grant the grandparents of the child reasonable visitation
rights to the child during the child's minority on a finding that the visitation rights
would be in the best interests of the child and any of the following is true:
1. The marriage of the parents of the child has been dissolved for at least three
months.
2. A parent of the child has been deceased or has been missing for at least three
months. For the purposes of this paragraph, a parent is considered to be missing if the
parent's location has not been determined and the parent has been reported as missing to
a law enforcement agency.
3. The child was born out of wedlock.
B. The superior court may grant the great-grandparents of the child reasonable
visitation rights on a finding that the great-grandparents would be entitled to such
rights under subsection A if the great-grandparents were grandparents of the child.
C. In determining the child's best interests the court shall consider all relevant
factors, including:
1. The historical relationship, if any, between the child and the person seeking
visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that
visitation will have on the child's customary activities.
5. If one or both of the child's parents are dead, the benefit in maintaining an
extended family relationship.
D. If logistically possible and appropriate the court shall order visitation by a
grandparent or great-grandparent to occur when the child is residing or spending time
with the parent through whom the grandparent or great-grandparent claims a right of
access to the child. If a parent is unable to have the child reside or spend time with
that parent, the court shall order visitation by a grandparent or great-grandparent to
occur when that parent would have had that opportunity.
E. A grandparent or great-grandparent seeking to obtain visitation rights under
this section shall petition for these rights in the same action in which the parents had
their marriage dissolved or in which the court determined paternity or maternity, or by a
separate action in the county where the child resides if no action has been filed or the
court entering the decree of dissolution or determination of paternity or maternity no
longer has jurisdiction.
F. All visitation rights granted under this section automatically terminate if the
child has been adopted or placed for adoption. If the child is removed from an adoptive
placement, the court may reinstate the visitation rights. This subsection does not apply
to the adoption of the child by the spouse of a natural parent if the natural parent
remarries. 25-410 Judicial supervision
A. Except as otherwise agreed by the parties in writing at the time of the custody
decree, the custodian may determine the child's upbringing, including the child's
education, health, care and religious training, unless, on motion by the noncustodial
parent, the court, after a hearing, finds that in the absence of a specific limitation of
the custodian's authority, the child's physical health would be endangered or the child's
emotional development would be significantly impaired.
B. If either parent requests the order, or if all contestants agree to the order,
or if the court finds that in the absence of the order the child's physical health would
be endangered or the child's emotional development would be significantly impaired, and
if the court finds that the best interests of the child would be served, the court shall
order a local social service agency to exercise continuing supervision over the case to
assure that the custodial or parenting time terms of the decree are carried out. At the
discretion of the court, reasonable fees for the supervision may be charged to one or
both parents, provided that the fees have been approved by the supreme court.
25-411 Modification of custody decree; affidavit; contents
A. A person shall not make a motion to modify a custody decree earlier than one
year after its date, unless the court permits it to be made on the basis of affidavits
that there is reason to believe the child's present environment may seriously endanger
the child's physical, mental, moral or emotional health. At any time after a joint
custody order is entered, a parent may petition the court for modification of the order
on the basis of evidence that domestic violence pursuant to section 13-1201 or 13-1204,
spousal abuse or child abuse occurred since the entry of the joint custody order. Six
months after a joint custody order is entered, a parent may petition the court for
modification of the order based on the failure of the other parent to comply with the
provisions of the order. A motion or petition to modify a custody order shall meet the
requirements of this section. Except as otherwise provided in subsection B of this
section, if a custodial parent is a member of the United States armed forces, the court
shall consider the terms of that parent's military family care plan to determine what is
in the child's best interest during the custodial parent's military deployment.
B. For the purposes of a motion to modify a custody decree, the military deployment
of a custodial parent who is a member of the United States armed forces is not a change
in circumstances that materially affects the welfare of the child if the custodial parent
has filed a military family care plan with the court at a previous custody proceeding and
if the military deployment is less than six months.
C. The court may modify an order granting or denying parenting time rights whenever
modification would serve the best interest of the child, but the court shall not restrict
a parent's parenting time rights unless it finds that the parenting time would endanger
seriously the child's physical, mental, moral or emotional health.
D. If after a custody or parenting time order is in effect one of the parents is
charged with a dangerous crime against children as defined in section 13-604.01, child
molestation as defined in section 13-1410 or an act of domestic violence as defined in
section 13-3601 in which the victim is a minor, the other parent may petition the court
for an expedited hearing. Pending the expedited hearing, the court may suspend parenting
time or change custody ex parte.
E. To modify any type of custody order a person shall submit an affidavit or
verified petition setting forth detailed facts supporting the requested modification and
shall give notice, together with a copy of the affidavit or verified petition, to other
parties to the proceeding, who may file opposing affidavits. The court shall deny the
motion unless it finds that adequate cause for hearing the motion is established by the
pleadings, in which case it shall set a date for hearing on why the requested
modification should not be granted.
F. The court shall assess attorney fees and costs against a party seeking
modification if the court finds that the modification action is vexatious and constitutes
harassment.
G. Subsection E of this section does not apply if the requested relief is for the
modification or clarification of visitation and not for a change of joint custody, joint
legal custody, joint physical custody or sole custody. 25-412 Expedited child support and parenting time fund
A. Each county treasurer shall establish an expedited child support and parenting
time fund consisting of monies received pursuant to section 12-284, subsection D.
B. The presiding judge of the superior court shall use fund monies to establish,
maintain and enhance programs designed to expedite the processing of petitions filed
pursuant to section 25-326 and to establish, enforce and modify court orders involving
children.
C. The county treasurer may invest monies in the fund and shall deposit interest
earned in the fund.
D. Monies received from this fund shall be used to supplement and not supplant
monies allocated by the county.
25-413 Domestic relations education and mediation fund; report
A. Each county treasurer shall establish a domestic relations education and
mediation fund consisting of monies received pursuant to section 12-284, subsection C.
B. The presiding judge of the superior court shall use fund monies to establish,
maintain and enhance programs designed to educate persons about impacts on children of
dissolution of marriage, legal separation and restructuring of families and programs for
mediation of visitation or custody disputes under this chapter or chapter 6 of this
title.
C. The county treasurer shall disburse monies from the fund only at the direction
of the presiding judge of the superior court.
D. On notice of the presiding judge, the county treasurer shall invest monies in
the fund and monies earned from investment shall be credited to the fund.
E. Monies that are expended from the fund shall be used to supplement, and not
supplant, any state or county appropriations that would otherwise be available for
programs described in subsection B of this section.
F. On or before August 10 of each year, the county treasurer shall submit a report
to the presiding judge that shows the amount of monies in the domestic relations
education and mediation fund.
25-414 Violation of visitation or parenting time rights; penalties
A. If the court, based on a verified petition and after it gives reasonable notice
to an alleged violating parent and an opportunity for that person to be heard, finds that
a parent has refused without good cause to comply with a visitation or parenting time
order, the court shall do at least one of the following:
1. Find the violating parent in contempt of court.
2. Order visitation or parenting time to make up for the missed sessions.
3. Order parent education at the violating parent's expense.
4. Order family counseling at the violating parent's expense.
5. Order civil penalties of not to exceed one hundred dollars for each
violation. The court shall transmit monies collected pursuant to this paragraph each
month to the county treasurer. The county treasurer shall transmit these monies monthly
to the state treasurer for deposit into the alternative dispute resolution fund
established by section 12-135.
6. Order both parents to participate in mediation or some other appropriate form of
alternative dispute resolution at the violating parent's expense.
7. Make any other order that may promote the best interests of the child or
children involved.
B. Within twenty-five days of service of the petition the court shall hold a
hearing or conference before a judge, commissioner or person appointed by the court to
review noncompliance with a visitation or parenting time order.
C. Court costs and attorney fees incurred by the nonviolating parent associated
with the review of noncompliance with a visitation or parenting time order shall be paid
by the violating parent. In the event the custodial parent prevails, the court in its
discretion may award court costs and attorney fees to the custodial parent.
25-415 Custody by nonparent; presumption; grounds; definitions
A. A child custody proceeding may also be commenced in the superior court by a
person other than a legal parent by filing a verified petition, or by a petition
supported by an affidavit, in the county in which the child is permanently resident or is
found. The petition shall include detailed facts supporting the petitioner's right to
file the petition. The petitioner shall provide notice as required by subsection
E. Notice shall include a copy of the petition and any affidavits. The court shall
summarily deny a petition unless it finds that the petitioner by the pleadings
established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the
custody of either of the child's living legal parents who wish to retain or obtain
custody.
3. A court of competent jurisdiction has not entered or approved an order
concerning the child's custody within one year before the person filed a petition
pursuant to this section, unless there is reason to believe the child's present
environment may seriously endanger the child's physical, mental, moral or emotional
health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the
petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal
separation of the legal parents at the time the petition is filed.
B. If a person other than a child's legal parent is seeking custody there is a
rebuttable presumption that it is in the child's best interest to award custody to a
legal parent because of the physical, psychological and emotional needs of the child to
be reared by the child's legal parent. To rebut this presumption that person must show
by clear and convincing evidence that awarding custody to a legal parent is not in the
child's best interests.
C. The superior court may grant a person who stands in loco parentis to a child,
including grandparents and great-grandparents, who meet the requirements of section
25-409 reasonable visitation rights to the child on a finding that the visitation is in
the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months.
2. The child's legal parents are not married to each other at the time the petition
is filed.
3. There is a pending proceeding for dissolution of marriage or for legal
separation of the legal parents at the time the petition is filed.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a
child may bring a proceeding for visitation rights with a child by filing a verified
petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section
shall be served pursuant to the rules of civil procedure to all of the following:
1. The child's parents.
2. A person who has court ordered custody or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have
custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in
the same action in which the legal parents had their marriage dissolved or any other
proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. "In loco parentis" means a person who has been treated as a parent by the child
and who has formed a meaningful parental relationship with the child for a substantial
period of time.
2. "Legal parent" means a biological or adoptive parent whose parental rights have
not been terminated.
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