The Question:
Do I have to return my son, or can I keep him due to concerns about my ex’s living situation? We’re in the middle of a divorce, and there are no custody orders yet.
RJ Says:
In Arizona, when there are no court orders in place, both parents have equal rights to the child. This means that unless there is a court order stating otherwise, you cannot unilaterally keep the child from the other parent—even if you have concerns about their living situation.
Arizona law requires judges to adopt a parenting plan that serves the child’s best interests and maximizes time with both parents, often starting from a place where equal parenting time is the goal.
Your concerns may be valid—but without a court order, keeping the child could be seen as denying the other parent their rights. Judges take this seriously. If you act on your own and withhold the child without documented evidence of abuse or immediate danger, it may damage your case down the line. The court could view it as interfering with the child’s best interests.
If you have real safety concerns, there are proper legal steps to take:
Seek temporary or emergency orders from the court.
Involve law enforcement or child protective services if there is immediate risk.
File a Petition for Temporary Orders along with your divorce petition.
You must be prepared to present evidence and make your case to the judge, especially if you believe equal parenting time is not appropriate.
A qualified and experienced family law attorney can help you determine the right course of action based on your specific facts. Our office offers free half-hour consultations, where we can discuss your matter and develop a legal strategy. Call (602) 256-7575 to schedule your consultation today.