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Things You Should Know About Custody and Parenting Time This booklet is designed to give you general information about custody and parenting time in domestic relations cases and to let you know what you can expect when the court is involved in the process.

Transcript of Custody and PTweb - AZLawHelp.org...Custody and Parenting Time When parents separate or divorce,...

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Things You Should Know About

Custody andParenting Time

This booklet is designed to give you generalinformation about custody and parentingtime in domestic relations cases and to letyou know what you can expect when thecourt is involved in the process.

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Contained in this Booklet

Questions & Answers

Words & Definitions

Locations for Obtaining Forms

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Custody and Parenting Time

When parents separate or divorce, care for the childrenmust continue. If the parents cannot agree on a plan forraising the children, the court will order a plan or decidematters concerning their health and welfare. Often thisincludes making decisions about how much time the childwill spend with each parent and which parent will be theprimary caregiver. In some situations, unmarried parents,relatives or other persons also may ask the court for cus-tody or parenting time. In each case, the court's decision isbased on the child's best interests.

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Questions & AnswersNOTE: This booklet is intended to provide general infor-mation about custody or parenting time. It is not a com-plete nor authoritative review of these subjects and reflectsthe laws of the state of Arizona only as of the date of itspublication. The booklet is not intended to be a guide toobtaining or changing legal custody or parenting time.Questions about specific situations should be discussedwith an attorney.

Other available booklets in this series include:• Child Support Modification• Covenant Marriage• Child Support Payments in Arizona• Divorce in Arizona• Establishing Paternity for Your Child in Arizona• Parent Education Class• Protective Orders

Although custody can be granted by the court to a personother than a parent, the following questions and answersassume parents are seeking custody or parenting time.

Q. What is custody?Custody is a legal term referring to the right of aperson to make decisions about the care and wel-fare of a child (for example, decisions about educa-tion, health care and religious training). The parentwith custody is often called the "custodial parent."In many cases, the child resides with the custodialparent most of the time. The law does not favor oneform of custody over another, nor do they basetheir decision on the sex of the parent

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Q. What is parenting time?Parenting time (also sometimes called "access,""contact," "residential time," or "visitation") is alegal term referring to the opportunity for the childto spend time with the parent who does not havesole legal custody. This parent often is called the"noncustodial parent."

Q. When do custody and parenting time issues arise?Most often, disputes about custody and parentingtime arise when married parents ask the court for adissolution of the marriage (divorce) or a legal sep-aration; however, custody issues may also arisebetween parents who have never been married orwho no longer live together. Custody issues mayalso arise after the divorce is final. In these situa-tions, parents sometimes disagree about whomakes decisions affecting the child's welfare, wherethe child resides and how much parenting time aparent will have when the child is not residing withthat parent.

Q. Who decides custody and parenting time?Parents may agree between themselves about cus-tody or parenting time; however, if the parents can-not agree and if the Arizona legal system becomesinvolved (for example, when a parent asks thecourt for a divorce), only the Superior Court maydecide these issues.

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Q. What is meant by "sole custody"?This means that one person has sole legal custodyof a child. In this situation, the court orders thatone parent be responsible for making the majordecisions regarding the child’s care or welfare.Although both parents may discuss these matters,the parent designated by the court has authority tomake final decisions in the event the parents do notagree.

Q. What is meant by “joint custody”?This means joint legal custody or joint physical cus-tody or both. In most cases, in order to obtain anorder for joint custody, both parents must agree toand submit a written parenting plan to the court.

Q. Can more than one parent be granted custodyby the court?Yes. In addition to sole custody, the law allows thecourt to grant joint legal custody and joint physicalcustody or both.

Q. What is “legal custody”?Legal custody is the status where one or both par-ents are responsible for making the major decisionsregarding the child’s care or welfare. When legalcustody is awarded to one parent, it is called “solelegal custody.” The law does not favor one form ofcustody over another.

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Q. What is “joint legal custody”?When the court grants joint legal custody, each ofthe parents has the same rights to make decisionsabout the child’s care and welfare and neither par-ent’s rights are superior to those of the other parent.In the best interest of the child, the court may directthat certain decisions be made by only one parent,even when joint legal custody is granted. The courtmay order joint legal custody without orderingjoint physical custody.

Q. If parents have joint legal custody, doesthe child live with each of them for equalamounts of time?

Not necessarily. Having joint legal custody doesnot mean that parents also have joint physical cus-tody or equal parenting time (see section 25-403,Arizona Revised Statutes).

Q. What is “joint physical custody”?When the court grants joint physical custody, theplace where the child lives (the child's physical res-idence) is shared between the parents in a way thatthe child will have essentially equal time and con-tact with both parents. Joint physical custody maybe granted in situations where parents share jointlegal custody or when one parent is granted solecustody.

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Q. Does the law favor joint custody or solecustody?

Arizona law does not favor one form of custodyover another. Also, the court may not prefer a par-ent as a custodian because of that parent's sex.

Q. What is the procedure for getting a custody order?The court may grant a custody order only in certainkinds of cases. Most often, custody is determinedwhen the parents are seeking a legal separation ordivorce, or when parents are asking the court tochange a custody decision that was made in an ear-lier separation or divorce case. Custody also maybe ordered when one parent starts a court case todecide paternity (or maternity) of a child.

When a parent starts a court case for legal separa-tion or divorce and the parents cannot agree aboutchild custody, custody automatically becomes anissue for the court to decide. These court decisionsare made in temporary orders hearings and in finaltrial if the parties are unable to reach agreement.After a decree of legal separation or divorce hasbeen granted, the court still has authority to change(modify) an earlier custody order.

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Q. How can a court’s custody order bechanged?Either parent may request in writing that the courtmodify a custody order. To change an existingorder it must be shown that the best interests of thechild are served. The request is filed with the Clerkof the Superior Court and a fee for filing is charged;however, there are limitations on requesting amodification. For example, a request may not befiled for one year from the date of the earlier order,unless there are special circumstances seriouslyendangering the child's physical, mental, emotion-al or moral health. If a form of joint custody hasbeen ordered, a modification may be requested atany time if there is evidence that domestic violence,spousal abuse or child abuse has occurred since thedate the last order was granted. In a joint custodysituation, a parent must wait six months beforeseeking a modification if the reason for the requestis that one parent has failed to obey the court's cus-tody order.

Q. How does the court make its decision aboutcustody?If there is a dispute about custody, the court some-times refers the parents to internal court mediation services. This process gives the parents an opportu-nity to reach an agreement regarding custody andrelated issues; however, if the parents are unable to

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agree on custody, the court will decide for them.Sometimes the court seeks professional advice fromoutside experts who evaluate the family situationor offer an opinion about custody. In some situa-tions, the court also may order an investigation bya social service or other agency. In every case, thecourt must decide custody based on a determina-tion of the best interests of the child.

Q. What if the parents agree how custody shouldbe decided?Usually it is best if parents can agree on decisionsabout raising children after a legal separation ordivorce. The court usually accepts the parents'mutual decision, but the court's decision about cus-tody must be made in the best interests of the child.After review of the agreement's terms, the dutyimposed on the court by law may require that thecourt not accept the parents' agreement.

Q. What does the court consider when decidingwhat is in the child's best interests in custodydisputes?State law provides guidance to the courts by listingfactors that the court should consider. Theseinclude such things as the wishes of the parents, thechild's wishes, how the child interacts with eachparent and any other children in the family, thehealth of each person involved, the child's adjust-ment to home, school and community, which par-

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ent primarily has provided care for the child in thepast and which parent is more likely to allow thechild to have frequent and meaningful contact withthe other parent.

The court also must consider whether there hasbeen domestic violence in the family, drug or alco-hol use by a parent or other circumstances that mayendanger the child's physical, mental, emotional ormoral health. The court will presume that anaward of custody to a parent who committed an actof domestic violence is contrary to the child's bestinterests.

Q. What if the parents want to have joint legalcustody?If the parents request joint legal custody, they alsomust submit to the court a written plan (parentingplan) indicating how they will cooperate to raiseand care for the child. The court may order jointlegal custody without ordering joint physical cus-tody. The court also may order joint legal custodyeven if one parent objects. The court's decision willbe made in the best interests of the child.

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Q. When custody is decided, how does a parentobtain child support? The law provides that when the court grants a cus-tody order, it also must decide what amount ofchild support should be paid, by each parent,under the Arizona Child Support Guidelines. Jointcustody does NOT mean that either parent is nolonger responsible to provide for the support of thechild.

Q. Can a person other than a parent have custody?Yes. The law provides that a person who stands inloco parentis to a child may ask the court for custody(or parenting time). To be in loco parentis a personmust have been treated as a parent by the child andhave formed a meaningful parental relationshipwith the child for a substantial period of time.There are other requirements that must be metbefore a request may be made to the court. One ofthe child's parents must be deceased, the child'slegal parents must be unmarried, or a court case fordivorce or legal separation between the legal par-ents must be pending (see section 25-415, ArizonaRevised Statutes).

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Q. How can a parent obtain school, medical andother records of their child after divorce?No matter which form of custody is ordered, bothparents are entitled to the same access to all recordspertaining to their child unless the release of suchinformation would place the child or one of the par-ents in danger (see section 25-403, Arizona RevisedStatutes).

Q. When may a parent with custody move fromArizona with the child?If both parents live in Arizona, the parent withphysical custody desiring to move with the childmust give 60 days' notice to the other parent beforethe child may be moved more than 100 miles fromthe other parent or from the state. The 60-day peri-od gives sufficient time to the non-moving parentto request a hearing to stop the move.

Q. What if my job requires an immediate transferin less than 60 days?A parent who is required to relocate in less than 60days must be a parent with joint physical custodyand have the agreement of both parents or a courtorder allowing the move of the child. If agreementcannot be reached in the situation of required relo-cation in less than 60 days, the moving parent mustfile a request with the court.

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Q. Why is parenting time important?A child deserves to have a good relationship withboth parents. When parents do not live together,the child should have the opportunity to spendtime with each parent.

Q. What parenting time rights does a parenthave?State law entitles a parent to reasonable rights ofparenting time to ensure that a child has frequentand continuing contact with the parent. However,parenting time can be limited, or even denied, if thechild's physical, mental, moral or emotional healthwould be seriously endangered by parenting timewith a parent.

Q. What amount of parenting time is right?That depends on the child's age and stage of devel-opment. For example, it may not be appropriate tohave lengthy periods of parenting time with a new-born child, although more frequent shorter visitsmay be appropriate. Some counties (Coconino,Maricopa, Mohave, Pima, Pinal and Yavapai) haveestablished guidelines to help parents and thecourts decide how much parenting time is impor-tant to the child. The Arizona Supreme Court hasalso published Model Parenting Time Plans toassist parents in establishing age-related parentingtime schedules; however, it is important to remem-

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ber that guidelines do not apply to all family situa-tions or to all children. If the parents cannot agreeon a schedule, the court decides parenting time ona case by case basis (see listing at the back of thisbooklet for inforamtion on obtaining a copy of theModel Parenting Time Plans).

Q. What is reasonable parenting time?The term "reasonable parenting time" means timespent with a child that is average for most cases.Although the term has sometimes been used in par-enting plans and even in court orders, parentingtime decisions depend on the circumstances of eachfamily, considering the child's age and develop-ment. When parenting time is described only as"reasonable," it is difficult to predict when or forhow long parenting time periods should occur.

When preparing an agreement or parenting plan, itis recommended that parents specifically decidewhen and for how long parenting time periods willbe, including how to handle and allocate specialoccasions like vacations, school breaks, birthdaysand holidays so that both parents are considered.Guidelines available in some counties and theModel Parenting Time Plans may be useful to par-ents in making these decisions. The parenting timeorder should be written specifically enough toenable the court to enforce the order if the order isnot followed and one parent files a request for

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enforcement.

Q. Are parenting time and custody related?Yes. Arizona law provides that in most cases a par-ent not granted custody of the child is entitled toreasonable parenting time rights to ensure that thechild has frequent and continuing contact with thatparent. As a part of its custody order, the court alsowill decide what amount of parenting time isappropriate. Even if parents share joint legal cus-tody, the child may live primarily with one parentor share residential time with both parents, makingit important to decide what parenting time sched-ule should be ordered.

Q. Do I have to start a court case to have parentingtime?Parents are free to agree on the best parenting timeplan for their child. If parents cannot agree, or iftheir agreement is not working, court action may benecessary. Remember, only the Superior Court candecide parenting time matters and issue an orderthat can be enforced if disagreements arise or if oneparent does not honor the parenting time schedule.

Q. How do I obtain a legal order for parentingtime?As with custody, the court may grant a parentingtime order only in certain kinds of cases. Most fre-quently, parenting time is determined when the

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parents are seeking a legal separation or divorce, orwhen parents are asking the court to change a par-enting time decision that was made in an earlierseparation or divorce case. Parenting time may alsobe ordered when one parent starts a court case todecide paternity (or maternity) of a child or after avoluntary acknowledgment of paternity.

When a parent starts a court case for legal separa-tion or divorce, child custody and parenting timeautomatically become issues for the court to decideif the parents cannot agree. After a decree of legalseparation or divorce has been granted, the courtstill has authority to change (modify) an earlier par-enting time order. Either parent may request inwriting that the court decide what parenting timeshould be. The request is filed with the Clerk of theSuperior Court and a filing fee is charged.

Q. How does the court make its decision about parenting time?If there is a dispute about parenting time, the courtsometimes refers the parents to court mediation ser-vices. This process gives the parents an opportunityto reach an agreement regarding parenting time andrelated issues. However, if the parties are unable toagree on parenting time, the court must decide forthem. Sometimes the court seeks professional adviceto evaluate the family situation or offer an opinionabout parenting time. When making its decision, the

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court will consider many factors, for example, theage and health of the child, the time each parent hasavailable from work or other obligations, the dis-tance between the parents' homes, the child's schoolschedule and the suitability of living conditions ineach parent's home.

Q. What if a parent disobeys a court orderfor parenting time?If one parent violates a parenting time order, theother parent cannot deny parenting time, stop pay-ing support or take other self-created action to pun-ish the violating parent (to do so also would violatethe court order). Instead, the court should be askedfor help. To do this, a parent must file a writtenrequest for enforcement with the Clerk of theSuperior Court and pay a filing fee. A hearingbefore the court may be necessary if the matter can-not be resolved.

Q. What can the court do if a parenting time orderis disobeyed?When a parent files a request for help in enforcinga parenting time order, state law requires the courtto take quick action. There are several remedies thecourt can use to deal with the violating parent.Some of these remedies may include ordering par-enting time to make up for missed sessions, order-ing the violating parent to attend education classes

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or counseling and finding the violating parent incontempt of court and ordering monetary fines (seesection 25-414, Arizona Revised Statutes).

Q. Can a person other than a parent have parenting time?Yes. In certain circumstances, Arizona law permitsgrandparents and great-grandparents to have par-enting time rights if it is in the best interests of thechild. In order to request parenting time rights by anon-parent, the child's parents must have beendivorced for at least three months, one parent mustbe deceased or missing for three months or thechild must have been born out of wedlock (see sec-tion 25-409, Arizona Revised Statutes), The lawalso provides that a person who stands in loco par-entis to a child may ask the court for parenting time.To be in loco parentis a person must have been treat-ed as a parent by the child and have formed ameaningful parental relationship with the child fora substantial period of time. There are otherrequirements that must be met before this requestmay be made to the court (see section 25-415,Arizona Revised Statutes).

Q. What is supervised parenting time?Sometimes, to prevent harm to a child's health oremotional development, it is necessary for the courtto order that a social service agency or a mental

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health professional be involved with a family to besure parenting time (and even custody) orders arefollowed. In this situation, the court may orderthe agency or another party to supervise or over-see the parenting time periods. In some cases,the exchange of the child is supervised by a thirdparty to diminish the conflict between the par-ents to which the child would be exposed with-out supervised exchanges.

Q. What if a court decision regarding custody,child support or parenting time needs to bemade before the end of the case if the parentscannot agree?

If the parents cannot agree in connection with anyor all of these issues at the beginning of the case,one or both parents may file a request with thecourt for temporary orders. Temporary orders areshort-term decisions made by the judge whichremain in effect until a final court order is enteredin the case. The Preliminary Injunction is the firsttemporary order issued in a suit for dissolution. Inaddition, either party may file a petition for tempo-rary orders for child related issues such as childcustody, child support and parenting time. If noagreement is reached after proper request is made,a hearing must be requested and held before thecourt, including witness testimony and presenta-tion of evidence.

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Q. Can custody and parenting time be decided forparents who are not married?

Parents are free to make decisions about custody orparenting time on their own. When parents areunmarried and no order has been entered to estab-lish parental rights, the biological father has nolegal right to either custody or parenting time untilpaternity is established. He also has no legal oblig-ation to pay child support to the mother until anorder of paternity is entered. In Arizona, paternitycan be legally established through the SuperiorCourt, the Department of Health Services or theDepartment of Economic Security (see the SupremeCourt booklet in this series titled Things You ShouldKnow About Establishing Paternity for Your Child).

Q. After legal paternity has been established,how are custody and parenting time decided?As with other cases, custody and parenting timecan only be legally decided by the Superior Court.The court must decide custody and parenting timebased on the best interests of the child. If a courtcase to establish paternity has been started in theSuperior Court, the court automatically decidescustody and parenting time matters. If paternityhas been established by voluntary process throughthe court, the Arizona Department of Health

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Services or the Department of Economic Securityhospital paternity program, one of the parents mustfile a specific request with the court to have custodyor parenting time legally decided.

Q. If the parents are not married, should the mother have custody?

Until legal paternity is decided, the law presumesthat custody of a child should be with the mother.However, when a court legally establishes paterni-ty, the law directs that unless the court orders oth-erwise, custody of the child should be with the par-ent with whom the child has lived for most of thesix-month period before paternity is decided. Ofcourse, when the court decides custody or parent-ing time, the decision is always based on the bestinterests of the child. Accordingly, the court mayorder that either or both parents have custody if itis in the child’s best interests.

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In 1996, the Arizona State Legislature established aDomestic Relations Education on Children's IssuesProgram, now offered in each Arizona county. This pro-gram sometimes is referred to as the parent educationprogram or parent information program. Although theprograms may differ somewhat in each county or evenwithin counties, each is designed to offer education toparents about the impact that divorce, the restructuring offamilies and judicial involvement have on children. TheArizona Supreme Court sets minimum standards forthese programs, including the topics to be covered andqualifications of course presenters.

Parents who have a child in common who is less thaneighteen years old must attend the program wheninvolved in a court case for dissolution of marriage(divorce) or for legal separation. Unmarried parentsinvolved in an court case to establish paternity or mater-nity also must attend the program if the court has beenasked to decide custody, parenting time or child support.Parents of minor children may also be ordered to attendthe program if, after determining paternity or obtaining adivorce or a legal separation, disputes regarding custody,parenting time or child support are presented to the court.Parents who fail to attend the program as ordered may berefused any specific request for court action, may be heldin contempt of court or may have other penaltiesimposed.

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A Note About the ParentEducation Program

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The program lasts up to four hours in length and a feemay be charged to each participant based on the bestinterests of the child. Accordingly, the court may orderthat either or both parents have custody if it is in thechild's best interests.

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Child Support Guidelines - Guidelines that are adopted by the Arizona SupremeCourt pursuant to 42 United States Code Sections 651through 669B. The guidelines provide instruction forevaluating each parent's income and child-relatedexpenses in order for each parent to contribute, bycourt order, their proportionate share of the total childsupport amount.

Custodial Parent -The parent who has been granted authority by the court tomake major parental decisions about a child's care andwelfare. These decisions may include disciplinary, edu-cational, medical, or dental matters and may include theauthority to determine the child's primary residence. TheArizona Child Support Guidelines define custodial parentas the parent who has custody of the children for thegreater part of the year.

Custody -The right of a person to make parental decisions about thecare and welfare of a child.

In Loco Parentis -A legal term referring to a person who, although not alegal or biological parent of the child, has been treated asa parent by the child and established a meaningfulparental relationship over a substantial period of time.

Words & Definitions

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Joint Custody - Joint legal custody or joint physical custody, or both.

Joint Legal Custody - Each of the parents generally has the same right tomake decisions about the child's care and welfare; alsorefers to the conditions under which both parentsshare legal custody and neither parent's rights aresuperior, except with respect to specified rights ofdecision-making set forth by the court or the parentsin the final order. Joint legal custody is not the sameas joint physical custody.

Joint Physical Custody - The condition under which the physical residence ofthe child is shared by the parents in a manner thatassures that the child has substantially equal time andcontact with both parents.

Mediation - A process by which persons attempt to reach mutuallyacceptable agreements, usually with the assistance of atrained professional who guides the discussion process.

Noncustodial Parent -The parent who does not have custody of a child. Thisparent often has rights to spend time with the child, sothat the child can spend time with that parent.

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Parent Education Program -Formally called the Domestic Relations Education onChildren's Issues Program, this is an educational programdesigned to help parents understand the impact on chil-dren that divorce, the restructuring of families and judi-cial involvement have on children.

Parenting Plan - A written document containing an agreement betweenparents indicating how a child will be raised and cared forafter the parents separate or divorce. A written parentingplan is required whenever parents ask the court to orderjoint custody.

Parenting time - Means the condition under which a parent has the right toperiodically have a child physically placed with the par-ent and the right and responsibility to make, during thoseplacement times, routine daily decisions regarding thechild's care, consistent with the major decisions made bythe person having legal custody.

Sole Custody - Means the condition under which one person has legalcustody.

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Apache CountyClerk of the Superior Court70 West 3rd SouthSt. Johns, AZ 85936(928) 337-4364

Cochise CountyClerk of the Superior CourtCounty Courthouse100 Quality HillBisbee, AZ 85603(928) 432-8571

Coconino CountyClerk of the Superior Court100 E. BirchFlagstaff, AZ 86001(928) 779-6535

Gila CountyClerk of the Superior Court1400 E. AshGlobe, AZ 85501(928) 425-3231

Graham CountyClerk of the Superior Court800 Main St.Safford, AZ 85546(928) 428-3100

Clerks of the Superior Court

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Greenlee CountyClerk of the Superior CourtCounty Courthouse5th & WebsterClifton, AZ 85533(928) 865-4242

La Paz CountyClerk of the Superior Court1316 Kofa Ave., Suite 607Parker, AZ 85344(928) 669-6131

Maricopa CountyClerk of the Superior Court201 W. JeffersonPhoenix, AZ 85003(602) 506-3676

Mohave CountyClerk of the Superior CourtCounty Courthouse401 E. Spring St.Kingman, AZ 86402-7000(928) 753-0713

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Clerks of the Superior Court

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Navajo CountyClerk of the Superior CourtCounty Courthouse100 E. Carter RoadHolbrook, AZ 86025(928) 524-4188

Pima CountyClerk of the Superior Court110 W. CongressTucson, AZ 85701(520) 740-3210

Pinal CountyClerk of the Superior CourtCounty Courthouse100 N. FlorenceFlorence, AZ 85232-2730(520) 868-6309

Santa Cruz CountyClerk of the Superior CourtCounty Courthouse2150 N. Congress Dr.Nogales, AZ 85621(520) 375-7700

Yavapai CountyClerk of the Superior CourtCounty CourthousePrescott, AZ 86301(928) 771-3312

Yuma CountyClerk of the Superior Court168 S. 2nd Ave.Yuma, AZ 85364(928) 329-2164

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Presented by theArizona Supreme Court

Administrative Office of the CourtsCourt Services DivisionCourt Programs Unit

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© 2003 Arizona Supreme Court