Q: Do I have to return my son or can I keep him due to concerns about my ex's living situation amidst our divorce without a custody agreement?
I am in the process of getting a divorce and recently obtained temporary custody of my son for a 24-hour period, as per an agreement with my ex. However, I have been served with a protective order that prohibits direct contact, allowing communication only through lawyers or by mail. I have concerns about my son's housing situation since my ex, who has no income, has been staying in Airbnb rentals, and her current rental ends next Monday. There is no formal custody agreement yet, and our first court date is scheduled for the 23rd. Given the uncertainty of my ex’s living arrangements and past cancellations of custody periods, am I obligated to return my son according to our agreement, or can I keep him in light of these circumstances?
A:
Pursuant to Arizona law, your Judge will be required, consistent with the child's best interests, to adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. So, Arizona law basically starts with the idea that the parents should share Equal Parenting Time.
There is no way to predict exactly what a Judge will do. Your goal would be to paint an overall picture of the life you can provide for the child compared to Mother's. With most things being somewhat equal, our Court's certainly do order equal parenting time quite often.
So, if you do not believe that kind of schedule to be in the child's best interests, you will need to prepare to convince your judge of your concerns.
Unilaterally withholding the child can be viewed as denying the other parent their legal rights, and a judge may interpret it as interfering with the child's best interests. If you keep the child from the other parent without a very strong, justifiable reason—like documented abuse or immediate danger—this may work against you later. If you have real concerns about the child’s safety, the right way to handle it is through proper legal channels—seeking emergency orders, calling authorities, or filing appropriate motions. Acting unilaterally, even with good intentions, can backfire.
A qualified and experienced family law attorney can of course assist you in considering your options and then getting where you need to be. Most of us offer free, 1/2-hour consultations, in which your matter can be discussed in detail. That would be a great opportunity to discuss the specifics of your matter and develop a plan. I would encourage you to quickly schedule this free consultation.
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