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Frequently I have male clients that are worried whether the mother of their children
will be able to take their kids away from them based solely on the fact that they are
the children’s mother.  In a word the answer is a resounding- NO.

According to Arizona Statute, custody of children is based on what is in the child’s
best interest.   Not only do Arizona Statutes not offer any presumption that the
mother should have the children based on her gender, but it specifically forbids any
custody decision based on a parents gender.  

Arizona Revised Statute 25-403.01 states directly that “The court in determining
custody shall not prefer a parent as custodian because of that parent’s sex”.   In
other words, both parents start out with the presumption that being with their child
as close as possible to 50% of the time is what is in the best interests of the child.   

Two parents created the child and unless there are some sort of extreme
circumstances, it is in the child’s best interest for them to grow up with both parents
in their lives.   You may no longer like the person you had a child with, but that does
not change the fact that it is almost always in your child’s best interest to have both
parents active in their lives.

There are factors that courts do take in to consideration when determining what is in
the best interest of the children.  According to ARS 25-403, a judge has to consider
all relevant factors when deciding custody 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 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, both, 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 both parents took the mandatory parenting education class.
10. Whether either parent was convicted of an act of false reporting of child abuse or
neglect.
11. Whether there has been domestic violence or child abuse.
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Stephanie Lee Ehrbright, Criminal Defense & Family Law Attorney
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