legal decision making

What is Legal Decision-Making?

Legal decision making refers to the right to make decisions regarding how a child will be raised. For example, it includes such things as choices about school, religion, or medical choices. (Note that many jurisdictions call this “legal custody”).

What is Parenting Time?

Parenting time refers to where a child spends his or time – the parenting time schedule. Parenting time addresses the days and times when, and locations where, the parents exchange the child. A parenting time schedule should also address things like where the child spends school breaks, summer break, long weekends, etc. A parenting time schedule will usually include provisions for a parent going on vacation with the child.

Determining Legal Decision-Making and Parenting Time

If the parties can reach an agreement on legal decision making and parenting time, the court will almost always adopt that agreement. If the parties cannot reach an agreement, the court will decide for them. When the court determines legal decision making and parenting time, the court must consider the “best interests” of each child. As a general rule, courts recognize that it’s important to have both parents involved in a child’s life. Thus in an ideal world, legal decision-making would be performed together by both parents, and both parents would be split parenting time equally. However, there are a range of reasons for which a court might deviate from a purely equal decision-making and/or parenting time arrangement. When looking at what is in the “best interests” of a child, the court considers a number of factors set forth in Arizona Revised Statute 25-403, including:

  • The past, present and potential future relationship between the parent and the child.
  • The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
  • The child’s adjustment to home, school and community.
  • If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
  • The mental and physical health of all individuals involved.
  • Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
  • Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
  • Whether there has been domestic violence or child abuse.
  • The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
  • Whether a parent has completed a program for the purpose of educating persons about the impact of divorce on adults and children.
  • Whether either parent was convicted of an act of false reporting of child abuse or neglect.

The outcome of cases involving legal decision making and parenting time issues depends largely on the specific facts of the case. If you are facing these issues, we can schedule a consultation with one of our attorneys to discuss your specific circumstances.

Legal Decision-Making and "Fitness" Issues

When awarding legal decision-making authority, Arizona courts will order either joint or sole legal decision-making. One of the things that creates a presumption in favor of sole legal decision-making is what the courts call "fitness" issues. A fitness issue is essentially something that indicates that a parent is not fit to make decisions. By statute there are a number of different things that can create this presumption or simply preclude a party that has a fitness issue from exercising joint legal decision-making. They include such things as significant domestic violence or a significant history of domestic violence (note that the definition of domestic violence includes child abuse) (A.R.S. 25-403.03), drug or alcohol abuse (A.R.S. 25-403.04), or sex offenses (A.R.S. 25-403.05).

Joint Legal Decision-Making with Final Decision-Making Authority vs. Sole Legal Decision-Making

A very common order that was issued over recent years was one of "final decision-making authority." The theory was that the parents would have joint legal decision-making, meaning both of them had to confer and agree on a legal decision related to the child. However, if they could not come to an agreement, then whichever parent had this final decision-making authority would have the final say in what the decision would be.

This general theory prevailed for quite some time and many courts issued orders for final decision-making authority. Many parties simply agreed that one party would have final decision-making authority. The practical problem that arose was that many parties would use this power in a manner that was the same as sole legal decision-making. That is to say that once they had final decision-making authority, they just did what they wanted to and advised the other party after the fact.

On March 1, 2018, the Arizona Court of Appeals issued a decision in the case of Nicaise v. Sundaram, which effectively ended the idea of joint legal decision-making with final say. The court there stated that such an arrangement is basically the same thing as sole legal decision-making. The court also said that you can make a requirement that each of the parties confer before making a decision, but that effectively, giving final say to one party is the same as that party having sole decision-making authority, not joint.

As a result, it's possible that you have an old order that has joint legal decision-making with final say, but you shouldn't have that order going forward. It's either joint or sole legal decision-making.

Controlling Specific Activities During the Other Parent’s Time

Many parents want to control what’s happening during the other parent’s time. Requests for things like, forcing the other parent to tell the child certain things, taking the child to specific extracurricular activities, or making sure the child does specific chores during parenting time are extremely common in the family court. However, under Arizona law, the court generally doesn’t have the authority to do any of that. The idea is that the court can’t step into the place of the parents and parent for them. It can only allocate how much time each parent can see the child. Paul E. v. Courtney F., __Ariz.__, ___P.3d__ (Ct. App. 2018).

The one major exception to this is if the court feels that not restricting parenting time would result in serious endangerment of the child’s physical, mental, emotional, or moral health. In that case, the court can take steps to ensure the child would be safe. However, this is not the same as being able to micromanage a parent’s time. It’s also a much higher bar than the normal “best interests of the child” standard.

Court Authority in Making Decisions for the Parents

In a similar sense, the Court doesn’t have the ability to inject its decisions about legal choices in place of the parents’ decisions. Legal decision-making involves decisions about such things as medical care, educational issues, etc. The court only has the ability to say who can make those decisions. It cannot make decisions in place of the parents. So if there’s a specific dispute about what doctor to go to, then the court can only point to which parent gets to make the decision. Paul E. v. Courtney F., __Ariz.__, ___P.3d__ (Ct. App. 2018).

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