Schrödinger’s Presumption

Smith v. Smith and Arizona’s Fuliginous Parenting Time Statute

Introduction

Legislatures in many jurisdictions in the United States and around the world have been taking steps to encourage courts to move toward a shared parenting paradigm and away from the historical practice of awarding sole custody of children to one parent with alternating weekend visits for the other. In 2012, the Arizona legislature enacted a statute which, although not using the words equal or presumption, many people thought established a presumption that equal time with both parents is in children’s best interests because it required courts to order maximum parenting time for both parents. The Arizona Court of Appeals shared that belief, at first, holding that under the new statute, “equal or near-equal parenting time is presumed to be in a child’s best interests.”[1] Three years after making that statement, however, the Court published its decision in Smith v. Smith.[2] There, the Court wrote, “Arizona Law Does Not Have A Presumption For Equal Parenting Time.”[3] Only two years after Smith, however, the Court again referred to equal parenting time as a “presumption.”[4] What the Court seems to be saying is that although equal parenting time is a presumption, it’s not a presumption presumption, or to put it another way, it simultaneously is and is not a presumption.

Part I of this essay describes the events leading up to the decision in Smith v. Smith. Part II describes what happened in Smith v. Smith. Part III describes the Court’s struggle for consistency and meaning. Part IV draws on the experience of other jurisdictions with similar “maximum parenting time for both parents” language in their laws to suggest ways to improve these kinds of statutes so they are not as likely to cause headaches for judges and are not as vulnerable to interpretations that render them superfluous.

The essay does not take a position on the merits of joint custody or equal shared parenting. A rich literature on the pros and cons of presumptive joint custody and equal parenting time exists.[5] Instead, the focus of this essay is exclusively on the language of equal parenting time statutes.

I. Historical Background

A. 2012 Arizona Parenting Time Legislation

Before 2012, Arizona statutes authorized courts to award parents joint physical custody, and defined joint physical custody to mean “the child is shared by the parents in a manner that assures that the child has substantially equal time and contact with both parents.”[6] That provision was repealed in 2012.[7] The repeal was not a substantive change, however. The quoted provision was merely a definition; it did not express a presumption in favor of joint physical custody. The repeal was part of an overhaul of the statute that included replacing the phrase physical custody with parenting time.”[8]

As part of the 2012 overhaul, a new provision was added:

“Consistent with the child’s best interests in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05 [relating to “best interest” factors], the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.”[9]

B. Judicial Interpretations

Some Arizona practitioners believed the newly added provision established a “strong presumption” that an equal or nearly equal parenting time division is in a child’s best interest.[10] Some judges initially interpreted it that way, too.

1. Manola v. Espinoza

In Manola v. Espinoza, a trial court ordered equal parenting time without bothering to make any findings on “best interest” factors.[11] The court “concluded that the [equal time] parenting time plan is consistent with all relevant statutory factors given what is required to maximize what is in the child’s best interests.”[12] Because it rested its decision entirely on the “maximize” language, the trial court evidently believed the new language established a legal presumption in which the predicate fact is the parties’ parentage of a child together and the presumed fact is that an equal division of time is in the child’s best interest. It appears that the court understood a presumption to have the effect of shifting the burdens of persuasion and production of evidence to the party opposing an equal or nearly equal division of time. The Arizona Court of Appeals remanded for the entry of findings of fact and conclusions of law on the statutory “best interest” factors.[13] The Court held that even after the “maximize” language was added to the statute, Arizona courts are still required to make findings on the statutory “best interest” factors.[14] Specifically, if the parents do not agree on a parenting plan, then “the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interest of the child.”[15]

Early on, the Arizona Court of Appeals dispelled the notion that “maximum time with both parents” means an equal amount of time for both parents.[16] The proportion of time to be awarded to each parent is to be calculated on the basis of a consideration of the ‘best interest” factors. The rulings in these cases, however, did not reach the question whether the statute established a presumption or not. In each of them, the Court merely affirmed lower court decisions in which the trial judge had, in fact, made “best interest” findings. As such, they were consistent with either interpretation of the statute: If the statute was not construed as establishing a presumption, then there would be no reversible error so long as the lower court made findings on the ordinary “best interest” factors. If the statute was construed as creating a presumption, then the lower court’s “best interest” findings sufficed to rebut it.

2. Barron v. Barron

The first appellate decision to address the presumptive effect of the amended statute was Barron v. Barron.[17] This was a dissolution of marriage proceeding in which the parties agreed to temporary orders that gave Husband more parenting time than Wife.[18] The purpose of this arrangement was to allow Wife time to complete her education and training to become a firefighter/ emergency medical technician.[19] Fourteen months later, the court issued a permanent order that reduced Husband’s parenting time to the traditional arrangement, i.e., primary care to the mother and every other weekend and a midweek visit for the father.[20] Husband brought the “maximize parenting time for both” language to the court’s attention, but the trial court declined to order an equal or nearly equal division of time: “If the interests of parents are more important than children, then children, like timeshares, would always be equally time-shared.”[21] The court declared that “[c]hildren should have a primary home and bedroom where special items like collections, posters and private things are maintained as opposed to forcing children to equally divide their time and things and clothes equally between two homes” and that “[a] primary residence promotes stability and continuity for children.”[22]

The Court of Appeals reversed, holding that the statutory amendment abolished the primary caretaker and sole custody presumptions.[23] The Court found no evidence in the record to support the trial court’s “broad generalization” that a child should have a primary home and that parenting time should never be shared equally between parents.[24] “By its nature,” the Court wrote, “Dissolution of a marriage compels children to divide their time between the homes of their two parents. That being the case, nothing in the law allows a court considering the best interests of the children to presume that one of those homes must be the children’s ‘primary’ residence.”[25] The Court also found no evidence in the record to support the trial court’s finding that “[a] primary residence promotes stability and continuity for children.”[26] “When each parent can provide a safe, loving and appropriate home for the children, there is no place in a parenting-time order for a presumption that ‘stability and continuity’ require the children to spend more time in one home than the other.”[27] Finally, the Court took the opportunity to expressly abolish the primary caretaker presumption: “Absent evidence in the record that a parent will be unable to properly care for a child, . . . the superior court errs when it presumes – as the court did here – that the child’s best interests necessarily are served by affording more parenting time to the former stay-at-home parent than to the other.”[28]

The Court essentially pronounced the death of the sole custody presumption. Instead of using the primary caretaker presumption as the starting point in a child custody determination, the Court directed courts to use the principle that “each party’s parenting time should be maximized” as the “starting point.”[29]

Although the Court did not explicitly hold that the 2012 statutory amendment established a presumption that an equal division of time is in a child’s best interests, it did reject the presumption that an equal division of time is detrimental to a child’s interests.[30] It described maximizing time with both parents as the “starting point;” and its ruling shifted the burden of production of evidence to the party opposing an equal division of time. Accordingly, it is fair to interpret the decision as establishing an equal time presumption.

3. Woyton v. Ward

The following year, in Woyton v. Ward, [31] the Arizona Cout of Appeals made its interpretation of the statutory amendment as establishing a presumption more explicit. Husband and Wife had been living in Arizona with their child for over six months, which made Arizona the child’s home state for purposes of child custody jurisdiction.[32] Wife unilaterally decided to move to Massachusetts, taking their child with her.[33] Husband secured an emergency order for temporary legal custody and primary parenting time, subject to the Wife’s right to supervised visitation.[34] In the dissolution that followed, however, the court issued an order making Wife the child’s primary residential parent.[35] Husband appealed. The Court of Appeals reversed, vacated the order, and remanded the case for further proceedings.[36]

The first part of the Court’s discussion appears under the heading, “Presumptively Equal Parenting Time.”[37] The decision states, “When the parties contest parenting time, ‘the court shall adopt a parenting plan that . . . maximizes [the parents’] respective parenting time.”[38] The decision then goes on to say, “As a general rule equal or near-equal parenting time is presumed to be in a child’s best interests.”[39]

On this basis, the Court ruled that the trial court erred when it rested its decision on the fact that Wife had been the primary caretaker during the marriage.[40] The Court also ruled that the trial court’s failure to consider statutory relocation factors was reversible error.[41]

4. Gonzalez-Gunter v. Gunter

In Gonzales-Gunter v. Gunter, [42] the Court clarified that the equal time presumption is rebuttable with evidence that the statutory “best interest” factors support an unequal division of time. The trial court had modified an order that gave Father equal parenting time by reducing his time to 72 days per year.[43] Father argued that an unequal division of time can be ordered only if a parent is shown to be unfit or a danger to the child.[44] The Court of Appeals disagreed, holding that any of the statutory “best interest” factors can be used to rebut the presumption.[45]

5. Adkisson v. Keith

Although it was an unpublished decision, Adkisson v. Keith[46] is important because it illustrates the Court’s growing discomfort with its decision in Woyton to interpret the statute as establishing an equal time presumption.

The trial court had ordered the traditional arrangement: It made the mother the primary residential parent and permitted the father to have parenting time with their child on alternating weekends.[47] Father argued that the trial court abused its discretion by ordering an unequal division of time without making a finding that an equal division of time was not in the child’s best interest.[48]

The court disagreed, ruling that the statute only requires a court to award equal or nearly equal time if it determines that equal or nearly equal time is in the child’s best interests.[49] The Court of Appeals affirmed, holding that the statute does not require an equal or nearly equal division of time; it merely provides that if a court finds that maximizing time with both parents is in a child’s best interests, then that is what a court should do.[50] Since the trial court did not make a finding that maximum time with both parents was in the child’s best interests, it was not required to attempt to maximize each parent’s parenting time.

II. Smith v. Smith

Just three years after declaring in Woyton that “equal or near-equal parenting time is presumed to be in a child’s best interest,”[51] the Arizona Court of Appeals decided Smith v. Smith. In this case, the Court declared, “Arizona Law Does Not Have A Presumption For Equal Parenting Time.”[52]

The parties in Smith v. Smith were a married couple with a child.[53] The father filed for divorce.[54] The trial court found that the mother had mental health issues that “would endanger the physical, emotional, or mental wellbeing of the child” if she had unsupervised parenting time.[55] On that basis, the court awarded her one week of supervised parenting time per month.[56] She appealed, arguing that the court erred by awarding her only 25% of the parenting time without explaining why it did not apply the equal time presumption.[57]

The Court of Appeals affirmed.[58] This time, the Court made it crystal clear that Arizona courts are no longer to treat the statute as establishing a presumption. Under a heading declaring in bold, capital letters, “Arizona Law Does Not Have a Presumption For Equal Parenting Time,” the Court held that the statute only “sets ‘the declared public policy’ of Arizona, it does not create a presumption.”[59] Regarding the “maximize time” language, the Court wrote that the “statute requires the superior court to ‘maximize‘ each parent’s respective parenting time if doing so is consistent with the children’s best interests.”[60] Further, “[t]he statute at issue here, § 25-403, does not reference any presumption, much less provide a presumption for equal parenting time. . . . Instead, the superior court ‘has discretion to determine parenting time based on all the evidence before it’ and should maximize parenting time only if it is in the child’s best interests.”[61] The word if does not appear in the “maximize time” provision.[62] Nevertheless, the Court interpreted the statute as a conditional expression rather than a declaration that maximum time with both parents is in a child’s best interests. Understood as a conditional expression, the statute only requires a court to order what it determines to be in a child’s best interests, which may or may not include maximizing parenting time for both parents. But deciding parenting time arrangements on the basis of what is in the child’s best interests is what the statute requires anyway.[63] Therefore, the Court rendered the “maximize time” language superfluous, except as a bar to deploying a primary caretaker presumption as the rule of decision.

When the statute is viewed as not establishing a presumption, it makes sense that a trial court would not need to either maximize time with both parents or make a finding that maximizing time with both parents is not in a child’s best interests; it “need not specifically spell out how its best-interests findings support an award of less than equal parenting time….”[64]

Arizona law provides that “the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interest of the child.”[65] The purpose of requiring findings is to enable a reviewing court to determine if the lower court erred in its interpretation, application, or failure to consider a factor it was required to deem relevant.[66] If language in a statute is merely precatory and unenforceable, then no purpose would be served by requiring a court to explain how it dealt with that language. By excusing courts from making findings about whether equal time is or is not in a child’s best interests, the Court was telling trial courts that they do not need to take the statutory mandate to maximize parenting time for both parents to heart. The only relevant factors on which courts must make findings are the ones enumerated in the state’s “best interests” statutes.

Given the Court’s interpretation of the “maximize time with both parents” language in Smith, it may be wondered what, if any, purpose that language serves. It is not needed to abolish the primary caretaker presumption.[67] Another provision of Arizona law does that. Prior to the 2012 amendments, Section 25-403(A)(7) directed courts to consider which parent “has provided primary care of the child.”[68] It made no reference to present or future care. The Arizona legislature repealed that provision in 2012 and replaced it with a new provision under which a court is required to consider not only the past relationship between a parent and a child but also the present relationship and the potential future relationship between the parent and the child.[69]

The conclusion is inescapable that the Arizona Court of Appeals demoted the “maximum time for both parents” language in the Arizona statute from a “strong presumption” to unenforceable surplusage. Subsequent Arizona Court of Appeals decisions confirm this. In Troutman v. Troutman,[70] the Court rejected the contention that “maximized parenting time” has any meaning: “In some cases, one day a week might be in the child’s best interests. But other cases may warrant equal parenting time. The court satisfies its statutory obligation when it considers the child’s best interests under §§ 25-403, -403.03, -403.04, and -403.05.”[71] And the Court has held that the traditional arrangement of sole custody to the mother and every other weekend to the father comes within the meaning of “substantial, frequent [and] meaningful” parenting time.[72]

III. The Court’s Struggle for Consistency and Meaning

The Arizona Court of Appeals’ contradictory assertions that Arizona law both has and does not have a presumption of equal parenting time should be viewed as an intermediate step in what is known in Aristotelian logic as a reductio ad absurdum argument.[73] After two contradictory propositions are deduced, the next logical step is to ascertain which of the premises leading to the contradictory conclusions is false. By identifying and eliminating the invalid premise, we can then identify and eliminate the faulty conclusion that was deduced from it. To that end, it is useful to begin with the Court’s attempted reconciliation of the contradictory propositions.

A. Mischaracterization of Previous Decisions

The Court attempted to distinguish its holding in Smith that Arizona law does not have a presumption of equal parenting time from its holding in Woyton and other Arizona cases that it does by insisting that it used the word presumption in those decisions only as “a short-hand explanation of a more comprehensive constitutional and statutory analysis.”[74] The Court cited Gutierrez v. Fox[75] and Maricopa County Juvenile Action No. JD-4974.[76] Those cases, however, are distinguishable from Woyton.

In Gutierrez, Mother claimed the court erred by issuing a temporary decision-making and parenting time order without making findings on all the “best interest” factors.[77] The Court of Appeals disagreed, holding that because temporary orders are transitory, they do not require statutory “best interest” findings.[78] Woyton and other cases like it involved permanent orders. Permanent orders do require the application of the statutory standards to determine what is in a child’s best interests.

More to the point, Gutierrez and Maricopa County Juvenile Action No. JD-4974 addressed the question whether parents of children born out of wedlock have co-equal rights to the custody of their children. In Gutierrez, the mother had unilaterally removed the child to another state and argued that although the father had acknowledged paternity, there was no court order and therefore she was entitled to move the child to another state without the father’s consent. The Court disagreed, holding that fathers and mothers have co-equal rights to custody.[79] Maricopa County Juvenile Action No. JD-4974 was a dependency proceeding in which the mother argued that the father did not have lawful custody until a court issued an order granting him custody. The Court disagreed, holding that when paternity has been established, the father and mother have a co-equal right to custody.[80]

The co-equal right of male and female parents to custody of their children is grounded in the fundamental parental rights of both male and female parents under the Due Process and Equal Protection clauses.[81] A co-equal right to custody, however, is not the same thing as a right to an equal division of parenting time. It does not appear that any court has ever held that those clauses require an equal division of time. To the contrary, courts and legislatures have repeatedly declared that the right to joint custody does not require an equal division of time.[82] Gutierrez and Maricopa Juvenile Action No. JD-4974 had nothing to do with any claimed right to equal parenting time. Woyton and the other decisions interpreting Arizona’s “maximize time with both parents” statute did.

In short, it is not the case that the equal parenting time presumption announced in Woyton was merely a “short-hand expression” for a general constitutional and statutory framework. The presumption announced in Woyton was specifically a presumption of equal parenting time based on Arizona’s statutory provision requiring courts to maximize parenting time for both parents. Although Woyton cited Maricopa County Juvenile Action No. JD-4974 , it did so only as additional support for its interpretation of Arizona Revised Statute 25-402.02(B) as establishing “a general rule that equal or near-equal parenting time is presumed to be in a child’s best interests.”[83]

The Court’s attempt to distinguish Woyton does not remove the contradiction.

B. The Chimerical Distinction Between a Presumption and a “Starting Point”

A second way that the Court has attempted to reconcile its contradictory pronouncements is by claiming that when it interpreted Arizona law as having a presumption that equal time for both parents is in a child’s best interests, it didn’t really mean a presumption presumption; it meant the kind of presumption that makes something a “starting point” without shifting the burden of production of evidence.[84] Closer examination of the distinction, however, reveals that it is meaningless.

In the context of the fact-finding process, courts in other states – indeed, even Arizona courts -- treat the terms “presumption” and “starting point” as synonyms.[85] The Arizona Cout of Appeals has interpreted Arizona’s parenting time statute as permitting a court to shift the burden of proof to the opponent of equal parenting time to show that an unequal division of time is in a child’s best interests.[86]

Under both the Federal Rules of Evidence and the Arizona Rules of Evidence, a presumption in civil cases shifts the burden of production of evidence, even if it does not shift the burden of persuasion.[87] If Arizona does, indeed, have an equal time presumption, then it would shift the burden of production of evidence. The Court insists, however, that this presumption does not do that, that it is only the “starting point” kind of presumption.[88] The Arizona Rules of Evidence do not recognize a “starting point” kind of presumption other than one that shifts the burden of production of evidence.

C. The Court Has Not Made Maximum Time for Both Parents a Starting Point

Even if it is assumed that some meaningful distinction between a presumption and a “starting point” is possible, it is not the case that the Arizona Court of Appeals has made equal parenting time the starting point. Instead, what the Court has said is that a court “should maximize parenting time for both parents only if it is in the child’s best interest.”[89] The first thing a court will need to consider, then, before deciding how to maximize each parent’s time, is what kind of parenting time arrangement is in the child’s best interests. In other words, after Smith, an Arizona court will not start with an equal division of time and then move on to a consideration of the “best interest” factors. Rather, it will work the other way around: It will start with an analysis of the “best interest” factors and from there move on to consider whether those factors might support an equal division of time or not. A conditional expression makes the validity of the consequent dependent on the validity of the antecedent. Accordingly, when a statute makes, or is interpreted as making, a conditional statement in the form, “y only if x,” which is equivalent to “if x then y and if not x then not y,” the logical starting point would not be to determine the validity of y. Rather, the logical starting point would be to determine the validity of x. By making awards of equal time conditional on a finding that equal time is in a child’s best interest per the statutory “best interest” factors, the Court has made the “best interest” factors, not an equal division of time, the starting point.

Based on this analysis, it is now possible to identify the faulty premises in the Arizona Court of Appeals’ reductio ad absurdum: (1) that there is such a thing as a “starting point” kind of presumption that shifts neither the burden of production of evidence nor the burden of persuasion; and (2) that maximum time for both parents is the “starting point” in a parenting time analysis under Arizona law. Under Arizona law, there is no such thing as a “starting point” presumption that does not shift the burden of production of evidence. And even if such a thing existed, maximum time for both parents is not the starting point under Arizona law. The “best interest” factors are.

IV. Improving “Maximum Parenting Time” Statutes

The Arizona Court of Appeals cannot really be blamed for making inconsistent rulings about the meaning of the Arizona parenting time statute. The 2012 amendment of the statute was ambiguous. It was drafted in such a way that the first clause could be interpreted as either a declaratory expression or a conditional expression. “Consistent with the child’s best interests [defined elsewhere] the court shall adopt a parenting plan that maximizes the parents’ respective parenting time” could be interpreted as a declaration that a plan that maximizes a child’s time with both parents is in the child’s best interests, or as a conditional expression. Viewed as a conditional expression, it conveys nothing more than that if a court finds that maximizing time with both parents is in a child’s best interests, then that is what the court is to do. Since the statute already requires courts to order parenting time arrangements that are in children’s best interests,[90] the second interpretation makes the newly added language unnecessary surplusage. That being the case, it is understandable that the Arizona Court of Appeals initially interpreted it to mean something. After all, one of the cardinal rules of statutory interpretation is that “a statute ought, upon the whole to be so construed that . . . no clause, sentence, or word shall be superfluous…”[91] and no statutory term should be treated as surplusage.[92]

Eventually, though, the Court reached a point where it could no longer ignore another cardinal rule of statutory construction, namely, that a court is to look at any plain language in a statute and “give effect to that language without employing other rules of construction.”[93] Arizona’s parenting time statute makes no mention of equal parenting time, much less a presumption of it.[94] “[T]he legislature could have created a legal presumption for equal parenting time if it intended to do so, but it did not.”[95] Courts may “not judicially impose a requirement the legislature has intentionally chosen not to require.”[96] The attorneys and others who believed the 2012 amendments established an equal parenting time presumption apparently did not consider these rules of construction.

In thinking about how the Arizona statute could be amended to avoid having any intended equal parenting time paradigm shift interpreted out of it again, it is useful to examine the experiences of some of the other jurisdictions that have added “maximum time” language to their statutes.

Minnesota’s parenting time statute provides that when evaluating what is in the best interests of a child, a court “must consider and evaluate all relevant factors, including . . . the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limited parenting time with either parent.” [97] This unusual phrasing could cause a person to believe it requires a court to deem maximum time with both parents to be in a child’s best interest. It does not. The plain language of the statute only requires a court to consider the benefit to a child of maximizing time with both parents and to consider the detriment to the child of something less than maximum time with both parents. Courts have not interpreted this as imposing a requirement that they assume either that maximizing time is beneficial or that limiting time is detrimental.[98] As it is currently worded, the provision simply means that if a party introduces evidence tending to show that maximizing time with both parents is beneficial, then the court must consider the evidence.

Minnesota’s declared public policy is to “ensure that each child has frequent and substantial contact with the child’s parents, as long as the child’s parents have shown the ability to act in the best interests of the child.”[99] This language does not help provide any meaningful content to the “consider the benefit” factor. Under Minnesota’s declared policy, a parent would first need to establish, through “best interest” evidence, that the parents have the ability to act in the child’s best interests before s/he could claim to be entitled to the benefit of the policy of ensuring substantial contact with the parents. The language of the statute suggests that Minesota does not simply assume that parents have the ability to act in the best interests of their children. Yet, if a parent is not assumed to act in the best interests of his or her children, then it cannot logically be assumed that maximizing a child’s time with the parent will be beneficial to the child. Accordingly, the declared public policy of Minesota appears to be that maximizing time with both parents is not assumed to be beneficial to a child. It is something a parent needs to prove to the satisfaction of a judge.

In short, the Minnesota statute requires a court to consider what impact maximizing time with both parents would have on a child, but it does not require courts to attempt to maximize a child’s time with both parents. It does not establish a presumption that maximum time with both parents is in children’s best interests. It is a “precatory words” statute. If the goal is to require courts to deem maximizing the time a child spends with both parents to be in children’s best interests, then the statute should be reworded to establish an equal parenting time presumption, or at least a “maximum time for both parents” presumption.

The Iowa Court of Appeals has done the same thing to that state’s “maximum time” provision that Arizona’s Court of Appeals did to theirs. The Iowa statute requires that a court, “insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage….”[100] Unlike the Minnesota statute, the Iowa statute does require courts to maximize time with both parents. It is not a legal presumption, though. By the terms of the statute, the requirement is triggered only if it is first established that maximizing time is reasonable and in the best interests of the child.[101]

Even if the language in the Iowa statute could be interpreted as establishing a presumption, though, it would not have much, if any, meaningful content. The Iowa Court of Appeals has held that “maximum” time with both parents does not mean an equal or nearly equal division of time even if an equal or nearly equal division of time is feasible.[102] If the goal is to establish a new paradigm of equal parenting time for both parents, then the words “equal” and “presumption” need to be used in the statute.

Tennessee has enacted a statute that requires a court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with . . .” the factors that are used in every case to determine what is in the best interests of a child, and in addition, “the location of the residences of the parents, the child’s need for stability and all other relevant factors.” [103] In this state, too, the courts have construed this language as establishing only an “aspirational goal,” not a presumption that equal amounts of time are in a child’s best interests.[104] Again, if the goal is to establish equal parenting time as the norm, then the words “equal” and “presumption” will need to be used in the statute.

A Wisconsin statute provides:

The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.[105]

This statute does not expressly create a presumption, but unlike the Tennessee statute, it does not include presumption-defeating language that renders it an unenforceable “aspirational goal.” It does not expressly condition an equal allocation on a finding that it is in a child’s best interests. Nevertheless, the Wisconsin Court of Appeals has rejected the notion that this language establishes a presumption that an equal amount of parenting time for both parents is in children’s best interests.[106] Rather, courts must apply the statutory “best interest” factors to determine the appropriate allocation of parenting time.[107] Again, if the goal is to establish an equal time paradigm, then the words “equal” and “presumption” need to be used in the statute.

The ambiguity in the Arizona statute could be removed by expressly using the words “presumption” and “equal time” in the statute. If the legislature is uncomfortable with using the word “presumption,” the next best thing would be to amend the statute so that instead of making equal time conditional on first completing an analysis of “best interest” factors, a court would be required to make an equal division of time unless it finds that some other arrangement is in the child’s best interests. Wording it this way should avoid the problem of making an equal division of parenting time something a court is empowered to do if and only if it first determines what is in a child’s best interests without relying on an assumption that an equal division of time is.

There is no reason that a statute establishing a presumption that an equal amount of parenting time for both parents is in a child’s best interests cannot also require a court to make findings on the “best interest” factors if a party produces any rebuttal evidence. Enacting such a requirement would help ensure that parties to a custody proceeding understand that the presumption is not conclusive, but is merely a starting point in the fact-finding process. At the same time, it would help ensure that courts have the ability to exercise their responsibility to determine in every case what is in each individual child’s best intereests.

Conclusion

As legislatures enact changes to their child custody and parenting time statutes in response to calls to make equal shared parenting the new paradigm, they need to exercise care in drafting the language of statutes to avoid ambiguity. Draftsmanship should be informed by awareness of rules of statutory construction. If the objective is to make an equal division of parenting time between parents the starting point in a custody or parenting time case, then the statute should include the words equal and presumption in it. If the goal is to establish a presumption without explicitly calling it that, then the next best alternative would be to use an “unless” sentence construction rather than either an “if” statement or an ambiguous sentence that can be construed as an “if” statement.. Because states already have made the best interests of the child the overarching standard in custody and parenting time cases, language like If a court finds that an equal or nearly equal division of parenting time is in the child’s best interests, then it shall order an equal or nearly equal division of parenting time is mere surplusage. A court shall order an equal or nearly equal division of parenting time unless an unequal division of time is not in the best interests of the child would come closer to accomplishing a paradigm-changing objective. It would prevent the equal parenting time language from being interpreted as mere surplusage while at the same time preserving a court’s power and responsibility to consider all “best interest” factors. It would provide some basis for appellate review of trial court decisions. And it would not put courts in the untoward position of trying to make statutory language mean something when rules of statutory construction impel a conclusion that it does not.

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[1] Woyton v. Ward, 453 P.3d 808, 810 (Ariz. Ct. App. 2019)

[2] Smith v. Smith, 508 P.3d 793 (Ariz. Ct. App. 2022).

[3] Id. at 796 (Ariz. Ct. App. 2022) (Capitalized letters in the original.)

[4] Deguzman v. Deguzman, 1 CA-CV 22-0669 FC, 1 CA-CV 22-0767 FC at *4 (Ariz. Ct. App. February 22, 2024) (VLex).

[5] For examples of arguments for and against presumptive joint custody or equal parenting time, see William V. Fabricius, Equal Parenting Time: The Case for a Legal Presumption, in Oxford Handbook of Children and the Law 453–75 (J. G. Dwyer ed., 2020); Amandine Baude et al., Child Adjustment in Joint Physical Custody Versus Sole Custody: A Meta-Analytic Review, 57 J. Div. & Remarriage 338-60 (2016); Angela Marie Caulley, Equal Isn’t Always Equitable: Reforming the Use of Joint Custody Presumptions in Judicial Child Custody Determinations, 27 Pub. Int. L.J. 403–60 (2018); Maritza Karmely, Presumption Law in Action: Why States Should Not Be Seduced into Adopting a Joint Custody Presumption, 30 Notre Dame J. L Ethics & Pub. Pol’y 321–67(2016); Edward Kruk, Arguments Against a Presumption of Shared Physical Custody in Family Law, 59 J. Div. & Remarriage 388–400 (2018); Jana B. Singer & William L. Reynolds, A Dissent on Joint Custody, 47 Md. L. Rev. 497-523 (1988); Stephanie R. Weber, Child Custody Is No Place for a Magic Formula: Why a Presumption of 50/50 Physical Custody in West Virginia is Not in Its Children’s Best Interests, 125 W. Va. L. Rev. 781–812 (2023).

[6] Ariz. Rev. Stat. § 25-402 (repealed 2012).

[7]2012 Ariz. Sess. Laws page 1817.

[8] Id. at 1817–20

[9] Ariz. Rev. Stat. § 25-403.02(B) (2024).

[10] See, e.g., Rowley Chapman & Barney, Ltd., SB 1127 - New Changes in Arizona Family Law Statutes— Custody Is Now Legal Decision-Making, CaseText (April 10, 2013), https://casetext.com/analysis/sb-1127-new-changes-in-arizona-family-law-statutes-custody-is-now-legal-decision-making (“[I]t creates a strong presumption favoring any plan that is logistically possible which gets close to 50/50”); J. Kyle Scoresby, Huge Changes Coming to Arizona Child Custody Laws, Ariz. Div. & Fam. L. Blog (2012), http://scoresbyfamilylaw.com/blog/2012/11/16/huge-changes-coming-to-arizona-child-custody-laws/ (November 16, 2012) (“I believe that, except in extreme cases . . . equal parenting time will soon be the norm.”) “Already,” one Arizona attorney wrote, “Many family court judges begin their child custody analyses from the position that the parents will have . . . equal time with the children unless one parent comes forward with substantial evidence showing that . . . would not be in the children’s best interests. Id. See also William V. Fabricius et al., What Happens When There is Presumptive 50/50 Parenting Time? An Evaluation of Arizona’s New Child Custody Statute, 59 J. Div. & Remarriage 414-28 (2018).

[11] Manola v. Espinoza, No. 1 CA-CV 13-0432 at *4 (Ariz. Ct. App. October 7, 2014) (VLex).

[12] Id.

[13] Id. at *9.

[14] Id. at *7–8.

[15] Ariz. Rev. Stat. § 25-403(B) (2024).

[16] See, e.g., Michael v. Michael, No. 1 CA-CV 14-0436 at *5–6(Ariz. Ct. App. March 12, 2015) (VLex); Settel v. Settel, No. 1 CA-CV 13-0650 at *7 (Ariz. Ct. App. October 21, 2014) (VLex); see also Sosa v. Sosa, No. 2 CA-CV 2017-0170-FC at *8–9 (Ariz. Ct. App. July 3, 2018) (VLex).

[17] 443 P.3d 977 (Ariz. Ct. App. 2018), vacated on other grounds, 440 P.3d 1136 (Ariz. 2019).

[18] Id. at 980.

[19] Id.

[20] Id.

[21] Id. at 981.

[22] Id.

[23] Id. at 981–83.

[24] Id. at 982.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 983.

[29] Id. at 981–82.

[30] Id. at 981.

[31] 453 P.3d 808 (Ariz. Ct. App. 2019).

[32] See Ariz. Rev. Stat. § 25-1031 (2024).

[33] Woyton, 453 P.3d at 809–10.

[34] Id. at 810.

[35] Id.

[36] Id. at 813.

[37] Id. at 810.

[38] Id. (quoting Ariz. Rev. Stat. § 25-403.02(B)).

[39] Id.

[40] Id. at 812.

[41] Id. at 811.

[42] 471 P.3d 1024, 1027 (Ariz. Ct. App. 2020).

[43] Id.

[44] Id.

[45] Id.

[46] No. 1 CA-CV 20-0193 FC (Ariz. Ct. App. January 26, 2021) (VLex).

[47] Id. at *3.

[48] Id. at *4.

[49] Id. at *4–5.

[50] Id. at *5.

[51] Woyton v. Ward, 453 P.3d 808, 810 (Ariz. Ct. App. 2019)

[52] Smith v. Smith, 508 P.3d 793, 796 (Ariz. Ct. App. 2022) (capitalized in the original).

[53] Id. at 794.

[54] Id.

[55] Id. at 795.

[56] Id.

[57] Id. at 796–97.

[58] Id. at 799.

[59] Id. at 796 (internal citations omitted).

[60] Id. at 797 (emphasis added).

[61] Id. (internal citations omitted).

[62] See Ariz. Rev. Stat. § 25-403.02(B) (2024).

[63] “The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child.” Ariz. Rev. Stat. § 25-403(A) (2024)

[64] Smith, 508 P.3d at 798.

[65] Ariz. Rev. Stat. § 25-403(B) (2024).

[66] Woodrich Constr. Co. v. State, 177 N.W.2d 563, 565 (Minn. 1970); Wright v. Wright, 337 S.W.3d 166, 186 (Tenn. 2011); William D. Cameron, Comment, The Requirement for Making Findings of Fact and Conclusions of Law in Washington, 31 Wash. L. Rev. & St. B.J. 261, 262–63 (1956); Mathilde Cohen, When Judges Have Reasons Not to Give Reason: A Comparative Law Approach, 72 Wash. & Lee L. Rev. 483, 507 (2015).

[67] A court can still consider who has been the primary caretaker of a child during a relationship when weighing “best interest” factors. See Ariz. Rev. Stat. § 25-403(A)(1).

[68] Ariz. Rev. Stat. § 25-403(A)(7) (2011) (repealed in 2012).

[69] Ariz. Rev. Stat. § 25-403(A)(1) (2024) (emphasis added).

[70] 1 CA-CV 22-0396 FC (Ariz. Ct. App. June 1, 2023) (VLex).

[71] Id. at *4.

[72] Yacullo v. Cunniffe, No. 1 CA-CV 19-0537 FC at *5 (Ariz. Ct. App. May 26, 2020) (VLex).

[73] Aristotle, Prior Analytics (350 BCE) (A. J. Jenkinson trans., Internet Classics Archive, 2009), https://classics.mit.edu/Aristotle/prior.html

[74] Smith v. Smith, 508 P.3d 793, 796 (Ariz. Ct. App. 2022)

[75] 394 P.3d 1096, 1104-05 (Ariz. Ct. App. 2017)

[76] 785 P.2d 1248, 1250 (Ariz. Ct. App. 1990)

[77] Gutierrez, 394 P.3d at 1104.

[78] Id. at 1104; Arizona R. Fam. L. Proc. 82.

[79] Gutierrez, 394 P.3d at 1106.

[80] Maricopa County Juvenile Action No. JD-4974, 785 P.2d at 1250.

[81] Stanley v. Illinois, 405 U.S. 645, 649 (1972)

[82] See, e.g., Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993); Davis v. Davis, 631 N.W.2d 822, 828(Minn. Ct. App. 2001)

[83] Woyton v. Ward, 453 P.3d 808, 810 (Ariz. Ct. App. 2019).

[84] Smith v. Smith, 508 P.3d 793, 797 (Ariz. Ct. App. 2022).

[85] See, e.g., State v. Conley, 523 P.3d 976, 984 (Ariz. Ct. App. 2023) (describing the presumption of innocence as “the starting point” in criminal cases); Burke v. Arizona Retirement System, 67 P.3d 712, 717 (Ariz. Ct. App. 2002) (describing a presumption in a civil case as the “starting point”); Walker v. Blair, 382 S.W.3d 862, 870 (Ky. 2012) (same); Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992) (same).

[86] Pedroza v. Pedroza, 1 CA-CV 23-0655 FC at *6 ¶18 (Ariz. Ct. App. July 11, 2024) (VLex) (“Mother also argues the superior court ‘imposed the burden of proof on Mother to demonstrate why equal time is not in the child’s best interest.’ Yet [this] is consistent with Arizona law….”) It is difficult, maybe impossible, to reconcile this ruling with the repeated insistence in Smith that Arizona law does not have a presumption of equal parenting time and that “parents [do] not bear a specific burden of proof to overcome presumed equal parenting time.” Smith, 508 P.3d at 796.

[87] Fed. R. Evid. 301; Ariz. R. Evid. 301; Golonka v. Gen. Motors Corp., 65 P.3d 956, 971 (Ariz. Ct. App. 2003) (“Arizona courts generally hold that a presumption is a procedural device that shifts the burden of producing contrary evidence to the party opposing the presumed fact but leaves the burden of persuasion on the proponent of the evidence.”)

[88] Smith, 508 P.3d at 796

[89] Id. at 797 (emphasis added).

[90] Ariz. Rev. Stat. § 25-403(A).

[91] Market Co. v. Hoffman, 101 U.S. 112, 115 (1897) (quoting Bacon’s Abridgment, sect. 2 (John Bouvier ed., Philadelphia, T & J. W. Johnson 1856)).

[92] Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995)

[93] See Parson v. Ariz. Dep’t of Health Servs., 395 P.3d 709, 712 (Ariz. Ct. App. 2017).

[94] Smith, 508 P.3d at 796, 797

[95] Id.

[96] Hart v. Hart, 204 P.3d 441, 445 (Ariz. Ct. App. 2009).

[97] Minn. Stat. § 518.17 (2024).

[98] Hansen v. Todnem, 908 N.W.2d 592, 599 (Minn. 2018) (“the language of [the statute] does not state or imply that time spent away from both parents is detrimental to the child”); see also Bachmayer v. Bachmayer, No. A19-1929 at *12 (Minn. Ct. App. 2020) (suggesting that equal parenting time may be detrimental to a child if the change is a significant one); JKL Peter Romero Lockhart v. Flakes, No. A17-1067 at *9–10 (Minn. Ct. App. 2018) (VLex) (judge may decline to maximize a child’s time with both parents on the basis of a personal belief that children “tend to do best with one primary home”).

[99] Minn. Stat. § 518.0011 (2024) (emphasis added).

[100] Iowa Code § 598.41.

[101] See, e.g., Petersen v. Keller, 821 N.W.2d 779 (Iowa Ct. App. 2012)

[102] In re Marriage of Bunch, 460 N.W.2d 890, 892 (Iowa Ct. App. 1990)

[103] Tenn. Code § 36-6-106 (2024).

[104] Rajendran v. Rajendran, No. M2019-00265-COA-R3-CV at *13 (Tenn. Ct. App. Sept. 16, 2020) (VLex); Flynn v. Stephenson, No. E2019-00095-COA-R3-JV, 2019 WL 4072105 at *7 (Tenn. Ct. App. Aug. 29, 2019) (VLex) (affirming a denial of equal time, noting that “the best interest of the child, not the ‘maximum participation possible’ concept, is the standard that applies in child custody cases”); Gooding v. Gooding, 477 S.W.3d 774, 778 (Tenn. Ct. App. 2015) (describing “maximum participation” as an “aspirational goal” rather than as a requirement).

[105] Wis. Stat. § 767.41 (2023).

[106] Keller v. Keller, 647 N.W.2d 426 (Wis. Ct. App. 2002).

[107] Id.; see also Landwehr v. Landwehr, 715 N.W.2d 180, 188 (Wis. 2006).