Presumption of Equal Parenting Time in Arizona

There is a presumption of equal parenting time in Arizona. That means that the default/standard under Arizona law is that both parents should have equal time with their children. Recently, the Court of Appeals clarified what a “presumption” of equal parenting time means. The Court of Appeals April 5, 2022, Smith v Smith decision, adopted the principles discussed in Dineyazhe and in this article. (Dineyazhe v. Onco-Ingyadet, No. 1 CA-CV 21-0122, 2021 WL 6055938 (App. 2021)), an unpublished case, set the foundation for the Smith v Smith decision and is illuminating as to how presumptions work. Smith is a published decision, and, therefore, precedent-setting. That means the principles discussed in this article have been adopted by the Arizona Court of Appeals as the law of the State of Arizona.  

A History of Equal Parenting Time Laws

First, a quick overview of the law. In 2012, Arizona’s Legislature overhauled the custody statutes. Among the changes they made was one to implement a public policy that, “absent evidence to the contrary, it is in the child’s best interest … [t]o have substantial, frequent, meaningful, and continuing parenting time with both parents.” A.R.S. § 25-103(B)(1).

Additionally, as part of those changes, the Legislature required courts to “maximize” each parent’s parenting time with the child. A.R.S. § 25-403.02(B). In applying these requirements, most judges and lawyers are of the understanding that this means equal parenting time. How else are you to maximize both parent’s time with the child unless it’s equal?

Subsequently, two cases emerged that have impacted how these laws are viewed. The first was Woyton v. Ward, which declared, “equal parenting time is presumed to be in a child’s best interest.” Woyton v. Ward, 247 Ariz. 529, 531 ¶ 6 (App. 2019). The Woyton decision did not explore this topic in much detail.

The following year, the Woyton presumption was affirmed in Gonzalez-Gunter, 249 Ariz. 489, 492 ¶ 11 (App. 2020), but that case also clarified that the Court need not order equal parenting when it is not in the children’s best interests, and that this applies even when both parents are deemed “fit.” Ultimately, Gonzalez-Gunter advanced the idea that equal parenting time is not mandatory.

Since then, we’ve seen some confusion regarding how the Woyton presumption applies—and even what it it is. That’s where Dineyazhe is useful.

Dineyazhe’s Clarification on Equal Parenting Time

In Dineyazhe, the Court of Appeals wrote, “Legal presumptions generally are tied to the burden of proof to establish the presumption, are identified as rebuttable or not, and identify what is required to rebut the presumption.” Id. at ¶ 29. The Court of Appeals then explained, “The legislature knows how to establish presumptions and impose burdens of proof and did not do so for equal parenting time.” Id. Therefore, concludes, the Court of Appeals, the Legislature did not intend to establish a burden of proof for parenting time matters. Id. at ¶ 30.

Rather, equal parenting time is the “starting point” for parenting time—but it is not an evidentiary obstacle that must be overcome for a parent who does not want equal parenting time.

What’s the Difference between a “Starting Point” and “a Burden of Proof?”

 The difference is a significant one. A “burden of proof” is a legal standard that determines what evidentiary threshold each party must meet. It an advantage to one side and a disadvantage to the other. The side with the burden of proof must provide enough evidence to overcome that burden, or else they lose. A simplistic way of explaining is that in the event of a tie, the person with the burden of proof loses.

This obstacle is significant enough, but one of the issues with Woyton is that people have misread the word “presumed” to mean “rebuttable presumption”—an even higher standard than a normal burden of proof. A rebuttable presumption means that if the person fighting it cannot disprove the presumption, then they automatically lose.

The problem with viewing Woyton as either imposing a burden of proof or rebuttable presumption is that it shifts the legal standard away from the one the Legislature actually did impose—best interests of the child. Burdens of proof and rebuttable presumptions automatically put one parent at an advantage before best interests of the child are even considered.

So that’s where a “starting point” comes in. Yes, equal parenting time is the starting point, but it assigns an advantage to neither parent. One parent may plead for equal parenting time, and one may press to be the primary parent, but both must persuade the Court that their position is in the child’s best interests.

The Best Interests of the Child

Best interests of the child, (ARS 25-403) remain the primary consideration in this analysis of presumption of equal parenting time. It further honors the legislative intent because what the Legislature actually wrote into the laws is that, absent evidence to the contrary, a child’s best interests are served by spending as much time with each parent as possible. The Legislature did explicitly write into the law that a child’s best interests are to have equal parenting time no matter what. The Legislature empowered judges to decide what is in a child’s best interests on a case-by-case basis.

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