Co-parenting is Tricky Enough Before You Add in Dating New Partners. And While We Don’t Often Like Our Exes’ New Significant Others, You May Have Cause for Concern if that Person is a Convicted Felon. Depending on the Circumstances, a Child Custody Modification May Be in Order. For a Comprehensive Review of Your Family Law Situation, Schedule Your Free Consultation at 480-263-1699.
Custody consists of two parts in Arizona: parenting time and legal decision-making. Parenting time is the schedule for when the child is physically with each parent. It is also sometimes referred to as “physical custody.” Legal decision-making, also called “legal custody,” is a parent’s right to make decisions for their child. One parent can have sole custody, or the parents can share joint custody, of either type of custody.
In Arizona, judges don’t have a preference for placing children with their mothers over their fathers. This is a common misconception about child custody laws, but Arizona family law judges actually have a presumption that it is better for the child to spend even (or close to even) amounts of time with each parent.
Before going to trial, you and your ex will have the opportunity to decide how you would like to address parenting time and legal decision-making for yourselves. This allows you the opportunity to create stipulations that a judge wouldn’t order in a courtroom. This can come in handy if your spouse has a history of making questionable decisions, or if you already have an idea of who their next partner will be.
If you’re worried about your ex moving on with someone disreputable and potentially unsafe, there are some stipulations you should consider negotiating into your custody agreement. For example, you could include a stipulation that when in each parent’s custody, the child won’t be babysat by anyone else without prior approval. You could also include a stipulation that the parents won’t bring a new partner around the children for a certain amount of time or without introducing the partner to the other parent first. Without this type of agreement made out of court, a judge won’t typically mandate these types of terms in custody orders. A judge especially won’t order them unilaterally, or where these restrictions would only apply to one parent.
Whether your custody orders arose from an out-of-court agreement or a lengthy, heated trial, there may come a time when the orders need to be changed. If so, the procedure you need to use is called a child custody modification. A judge will not hear a petition to modify custody unless at least 12 months have passed since the last custody orders went into place. There also must have been a substantial and continuing change in circumstances for the judge to approve a modification. None of this guarantees that your modification will be granted, as judges prefer to keep consistency in a child’s schedule, not to overturn their own orders, and discourage repeated litigation over custody issues.
As mentioned above, there must be a “substantial and continuing change in circumstances” for a judge to modify custody orders. So the key question here is whether your ex dating a new felon is substantial (and continuing) enough of a change to warrant a custody modification. In general, Arizona family law judges respect a parent’s right to move on with a new romantic relationship when things don’t work out with the child’s other parent. However, judges also recognize that sometimes a new partner can be such a bad influence that custody should be changed.
There are several factors that will influence whether the judge will be concerned about a parent’s new partner’s criminal history. One of these is the recency of the conviction. For example, someone who finished their sentence 10 years ago and has had a clean record since will probably be viewed more favorably than someone who is fresh out of prison or a halfway house. Another consideration is the type of crime the person was convicted for – an old drug possession conviction will be less cause for concern than child abuse charges. The judge may also consider things like whether the felon was a repeat offender, or if they have completed education and counseling for their relevant conviction.
There are several ways that dating a felon could indirectly affect a custody situation. A felony conviction can make it harder for someone to find a job and housing. That might mean a felon’s partner could have to relocate with them to find somewhere the felon can work and live. Judges have a preference to keep a child’s schedule and living situation stable, and probably won’t rule in favor of a parent who wants to move a child out of state to live with a felon partner. The judge will also consider the child’s relationship with all household members when determining custody, so if your child doesn’t get along with your ex’s new felon partner, the judge will consider this factor. Your child’s own opinion can also be taken into account at a certain age – usually about 12 years old. Contact our Phoenix Divorce Lawyers at our Arizona family law firm at for more information about relevant factors in custody matters.
When a child is in danger, the regular rules for child custody modification don’t apply. This would be the procedure to use if you have reason to believe your child is being abused by their other parent’s new partner. For an emergency child custody modification, the typical 12-month mandatory waiting period between custody orders doesn’t apply.
When pursuing an emergency custody modification, it’s vital that you follow every step precisely, for your child’s sake. When you file an emergency custody modification, you must file a standard petition for child custody modification concurrently or have already filed it. The health, safety, and welfare of the child in question must be in serious jeopardy. You must provide detailed information about why you have these beliefs. This evidence should be convincing to a level that it justifies being heard before other families who have been waiting for a hearing, and without providing the other party with the standard mandated notice.
After figuring out custody with your child’s other parent, the last thing you should have to worry about is them dating someone freshly out of prison and bringing them around your kids. If you believe that your ex is exposing your children to someone dangerous, it may be time for you to consider a custody modification. But just because your ex is dating a felon doesn’t mean that modifying custody will be easy. Any petitions for modification need to be clear and convincing, and filing errors could cause delays when time is precious. Our Arizona custody team can make sure that your petition and evidence are compelling so that the judge can see things from your perspective. We also offer great rates and monthly installment payment options. To get started with your free consultation, call our Arizona Family Law office at 480-263-1699.
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